Until less than three years ago Don Lawley, a 35-year member of the union, represented the Oklahoma-Arkansas coalfields on the mine workers' executive board. Then he was hired as director of labor-management relations for the Gariand Coal and Mining Company, a strip mine operator. "I've got to make a living," he said. Mr. Lawley, 55 years old, said in an interview in his office at the company's headquarters in nearby Fort Smith, Ark., that his employer would not sign the threeyear contract that most unionized coal operators agreed to last June, ending a 72day national strike. VOTE TO DECERTIFY POSSIBLE And despite a sometimes violent struggle here and at Gariand's two other strip mines at Stigler and Tamaha, Okla., the union appears unlikely to win back its position, which means more to it than just the 160 jobs at stake here in the Arkoma Basin, where most of the coalfields are nonunion. Next month, a year after the expiration of the last U.M.W. contract, Gariand's new nonunion employees would be eligible under Federal labor law to decertify the union if a petition to the National Labor Relations Board called for such an election. Union officials expect such a vote to be requested and conducted. The strikers now picketing the mine 24 hours a day would not be able to vote. If Gariand Coal can continue shipping coal with a nonunion work force while it refuses to accept a union contract "it will give them all the idea that this union can be beat," said a union official. The company objects to a provision that requires it to make royalty payments to the union's pension plan based on tonnage, a system that Gariand and many other mine operators regard as wasteful and more costly than the retirement plans available to individual operators from insurance companies. In the last year before the strike began, Gariand paid $720,000 into the plan, Mr. Lawley said. COMPANIES OPPOSE PENSION PLAN The major companies in the coal industy tried to shed the pension plan in the national negotiations last year, and they are expected to try again in the next round of contract talks in 1984. In the view of labor specialists, a union defeat here would also underline a growing phenomenon, the rise to corporate power of younger, union-resisting heirs to entrepreneurs who had made peace with the miners' union and other labor groups. "Here, it is the younger generation," said Harrison Combs, the union's 71-year-old general counsel, referring to the opposition to the pension plan of J. F. Porter 3d, 45, who succeeded his father as president and board chairman of Gariand Coal. In 1956, when Mr. Porter's father was running the company, the union obtained control of enough stock in the electric power company to which Gariand then sold its coal to require Gariand to accept the union if it wished to keep its utility sales. The younger Mr. Porter has refused to meet top union leaders, forcing them to deal with Mr. Lawley, who says, "We are not out to break the union." He said he would sign a contract-without the pension plan. From his perspective as a retired union executive, he said he blamed the union for "failing to organize this area when we pled with them to do it," thus leaving Gariand at a competitive disadvantage with nonunion operators. NEGOTIATIONS INTERMITTENT Rich Trumka, a young miner and lawyer sent here by Sam M. Church Jr., the union president, to negotiate with Mr. Lawley, conceded that there were "union mistakes here." But he said that the pension exclusion proposal "is a union-busting idea." Mr. Lawley has also said that Gariand will not remove its nonunion workers to rehire the strikers. Negotiations have been intermittent and, so far, unproductive. Both the Gariand bargaining meetings and the quarterly session of the union's executive board, which Mr. Church convened at the Fort Smith (Ark.) Ramada Inn this week as a show of support for the strikers, have been given a political coloration by the fact that Mr. Trumka, 32, is challenging Mr. Church, 45, for the union's presidency in an election to be held in November. Wednesday both men led a busload of executive board members to a muddy picket line headquarters beside a trailer here. "It's a shame we can't have the two of them," said Cleo Hocott, one of the pickets. "They're both good men." For Mr. Trumka, the assignment has been double-edged. Complicating his campaign, Mr. Trumka is posted far from most of the union's members in the Middle West and Appalachia. But the dispute also has the potential to grab headlines for the young and little-known challenger. OPERATIONS BRIEFLY HALTED The U.M.W. Journal, the union publication that Mr. Church controls, reported that in December Mr. Trumka and other members of his union negotiating team here were the targets of four shotgun blasts as they drove near the picketed Gariand mine at Stigler. They were uninjured. The dispute has led to the scattering of nails along Gariand Coal's truck routes, a practice that Mr. Lawley said "means 50 tire changes before lunch on some days," and the short-circuiting with lengths of chain of the company's high-voltage overhead power lines. Late last year a court ordered the Gariand mines closed as "a riot area," but after two days the Oklahoma Supreme Court reversed the order. Gariand Coal is sparing little in its fight. When the union won a government order to audit the company's books to study Gariand's contention that it could not afford to support the pension plan, it discovered that in less than a year the company had spent $2.5 million on armed security guards. The company is also paying thousands of dollars for truck tires and up to $8,000 a month to restore electric service when the power lines are sabotaged. It appears willing to keep paying. [From the Seattle Times, Feb. 18, 1982] UNION ORDERED TO PAY FIRM FOR "DIRTY TRICKS" DURING TRUCKING STRIKE (By Carey Quan Gelernter) A King County Superior Court jury yesterday decided a Teamsters local must pay a company $581,793 because it failed to supervise union members' "dirty tricks" against the firm during a strike. The unanimous verdict ordered Teamsters Local 174 and Teamsters Joint Council 28 to pay the Taylor-Edwards Warehouse & Transfer Co. Inc. Taylor-Edwards, a family-owned warehouse and trucking business, had asked for $1 million in its suit. But the company lawyer, Ken McMullin, said the firm was pleased with the award. Rod Schmidt, business agent for the Teamsters local, said the union would make no comment other than it would appeal the verdict. The Teamsters struck Taylor-Edwards in January 1980 and the strike lasted a year, after which members returned and a new contract was negotiated shortly afterward. During the strike, McMullin contended, union members repeatedly punctured tires and radiators, strewed nails under trucks and harassed substitute employees on highways and at the company. "We said they were negligent in supervising the strike... and that business agents had participated in these things as well, aiding and abetting," McMullin said. David E. Taylor Jr., son of the owner and an employee in the firm, said the damage amount was based on costs Taylor-Edwards had to pay for guard dogs, extra security and to make up for loss of business suffered when clients became intimidated and harassed by illegal-strike activity. McMullin said the case was probably "one of the very few" of its kind, and he knew of no others in the state in which a union was held accountable for its members' actions during a strike. “One in a while, someone might get out of line and we're not talking about that," he said. "We're talking about patterns of violence. "I think this will have a positive effect," McMullin said. "In the future, we'll begin to see unions take a more forceful approach to controlling their members during strikes-the sabotage, the dirty tricks." By Thomas R. Haggard* Labor Violence: The Inadequate I. INTRODUCTION Of all kinds of human conduct, physical violence against person or property is undoubtedly the one which receives almost universal condemnation among civilized peoples. Even the fiercest of the classical liberals and modern libertarians, who view government's function very narrowly, recognize both the propriety and the necessity of state sanctions against aggression. Indeed, this may even be viewed as the only truly essential function of government, the nonperformance of which divests a corporated body of any legitimate claims to be our political sovereign. The state's control of violence is, in short, a very important matter. Labor violence, however, has long been a major problem in this country. Perhaps the earliest reported instance of labor violence occurred in 1799 in connection with a strike among the cordwainers of Philadelphia. It involved numerous acts of misconduct, including the throwing of a tack-studded potato through a shop window, barely missing the head of the proprietor who had hired a "scab" a quaint but lethal way of making a point! The fifty-year period between 1880 and 1930 was especially marked by acts of violence commited in connection with the many strikes and lockouts of that era, which often took on the dimensions of "small wars."2 In one two-year period, 1902-04, approximately 200 people were reported killed and over 2,000 injured in acts of labor violence.3 Professor of Law, University of South Carolina School of Law, B.A., University of Texas, 1964, LL.B., University of Texas, 1967. Research for this article was financed by a grant from the Foundation for the Advancement of the Public Trust to the Wharton School, University of Pennsylvania. The views expressed herein are, however, entirely those of the author. ©Copyright reserved, 1980, by Thomas R. Haggard. Reprint permission may be obtained from the NEbraska Law REVIEW. 1. Nelles, The First American Labor Case, 41 YALE L.J. 165, 176 (1931). 2. See generally J. BRECHER, STRIKE! (1972), S. LENS, THE LABOR WARS (1973); Taft & Ross, American Labor Violence: Its Causes, Character, and Outcome, in THE HISTORY OF VIOLENCE In America 281-395 (1969). 3. NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA 288-89 (1969). 859 860 NEBRASKA LAW REVIEW [Vol. 59:859 Although the days of company "armies" and the Molly McGuires are thankfully gone, acts of violence continue to occur in labor disputes in this country. No hard data exists concerning the current scope and origin of this violence. It would appear, however, that when management opposition to unionization does go beyond the bounds permitted by law, it consists mainly of economic reprisals against union sympathizers," although physical violence by management officials does occur occasionally." Violence appears to be a more extensive problem for the House of Labor. In some instances, it undoubtedly represents the "semiofficial" policy of a labor union, a deliberate and all too effective tool for bargaining or organizing. In other instances, the official dereliction consists merely of a more-or-less passive indifference to the use of violence by rank-and-file members, including the failure by union leaders to take steps to prevent and correct these "unauthorized" acts. Also, there are still other instances of individual worker violence committed in open defiance of official and genuine union prohibitions against it. This conduct is of as much concern to responsible labor leaders as it is to the victims themselves. At first glance it would appear that the law has responded fully and adequately to the problem of labor union violence. Such conduct is actionable under both the criminal' and the civil laws of every state, and stiff penalties and high damage awards are certainly possible. In addition, the federal Labor Management Rela 4. The Molly McGuires, the name of a group whose formal existence is a matter of some historical dispute, is generally used to refer to the Irish miners who engaged in widespread acts of violence, sabotage and murder in the eastern Pennsylvania coal fields during the bitter strikes of the 1870's. See generally S. LENS, supra note 2, at 11-35. 5. This kind of conduct, of course, constitutes an unfair labor practice. Labor Management Relations Act §§ 8(a)(1), (a)(3), 29 U.S.C. §§ 158(a)(1), (a)(3) (1976). 6. The section 8(a)(1) prohibition against employer interference, restraint, or coercion of employees in the exercise of their statutory rights is certainly broad enough to also encompass acts of physical violence or intimidation. See, e.g., Jacques Syl Knitwear, Inc., 247 N.L.R.B. No. 191 (1980). In 1979, however, only nine violations of this kind were found by the National Labor Relations Board. 7. Such things as assault and battery, riot, burnings, and trespass against land and chattels, all of which can easily occur within the context of a labor dispute, are routinely prohibited by the criminal codes of the various states. See, e.g., S.C. CODE §§ 16-3-620, -5-70 to -140, -11-120 (1976). 8. See Comment, Tort Liability of Labor Unions for Picket Line Assaults, 10 U. MICH. J.L. REF. 517 (1977). 9. See, e.g., Pipeliners Local 798 v. Ellerd, 503 F.2d 1193 (10th Cir. 1974), C.E. Thurston & Sons, Inc. v. Barber, 78 LR.R.M. 2719 (M.D.N.C. 1971). 92-211 0-82-30 1980] LABOR VIOLENCE 861 tions Act regards such violence as an unfair labor practice.10 Although the use of injunctions is prohibited in the context of most labor disputes, the statutes seem to recognize an exception with respect to violence.11 Furthermore, there are numerous other statutes, both state12 and federal,13 which either specifically or generally include labor violence within their ambit, or which have the potential of doing so.14 Despite the plethora of state and federal laws which potentially touch on the matter, the problem of labor union violence seems to persist. Even with due recognition that the law can never be expected to eradicate completely man's tendency toward aggression or to always provide a full measure of justice to its victims, the uneasy feeling remains that the law does not address the problem of labor union violence with the vigor that it should. The attitude seems to be that "boys will be boys;" that a certain amount of "animal exuberance"15 is to be expected in the emotionally supercharged atmosphere of a labor dispute; and that, while this is to be regretted, the law should not over-react.16 This attitude can be seen in all three branches of government. 10. Labor Management Relations Act §8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A) (1976), Local 30, United Slate, Tile & Composition Roofers, 227 N.L.R.B. 1444 (1977), Union de Operadores y Conteros de la Industria del Cemento de Ponce, 231 N.L.R.B. 171 (1977); Teamsters Local 695, 204 N.L.R.B. 866 (1973). 11. Norris-LaGuardia Act §§ 3(e), 3(i), 29 U.S.C. §§ 104(e), (i) (1976). 12. See, e.g., S.C. CODE § 41-7-70 (1976). 13. The Hobbs Act, 18 U.S.C. § 1951 (1976), which is the subject of this article, represents the primary attempt of Congress to deal with the specific problem of labor violence. The Labor Management Relations Act has a broader scope and direction. 14. See, e.g., 18 U.S.C. § 241 (1976), prohibiting conspiracies to injure persons in the exercise of their federal rights. In United States v. De Laurentis, 491 F.2d 208 (2d Cir. 1974), the court held, however, that this statute did not apply to violence by union officials against employees who were attempting to exercise their federal statutory right of refusing to participate in certain union activities. The court conceded that a violation literally existed, but went on to ask: "Can Congress have intended the consequences of such improper, but nevertheless not uncommon acts, to be up to ten years in prison, or a $10,000 fine, or both? The thought does more than give one pause; it brings one to a halt, and to a further, more careful look at the Government's position." Id. at 211. 15. Under the so-called "Thayer Doctrine," an employee who has been fired for engaging in conduct so designated is, despite the otherwise unprotected nature of the conduct, entitled to reinstatement if the employer has engaged in unfair labor practices which are theoretically assumed to have provoked such exuberance. The Board only draws the line where "the misconduct is so flagrant or egregious as to require subordination of the employee's protected rights [sic] in order to vindicate the broader interests of society as a whole." W.C. McQuaide, Inc., 220 N.L.R.B. 593, 594 (1975), modified in other respects, 522 F.2d 519 (3d Cir. 1977). 16. See United States v. De Laurentis, 491 F.2d 208 (2d Cir. 1974). |