nature of property damage, or its exact timing, contributed to an inference, based also on the fact that a labor dispute was pending at the time the damage was done, that the damage was purposeful rather than mindlessly vindictive.245

907

The amendment was adopted246 and S. 1437 passed the Senate on January 30, 1978;247 however, the bill was allowed to die in the House.

Undaunted by this lack of prior success, Senator Kennedy, on behalf of himself and several other Senators, reintroduced a proposed recodification of the federal criminal laws248 in the Criminal Code Reform Act of 1979, S. 1722.249 As introduced, the extortion provisions of this bill were identical to those as contained in S. 1437 as passed by the Senate.

Hearings were again held on this bill, and to at least some of the representatives of management the extortion provisions of the bill were apparently satisfactory. The published comments of the Associated Builders and Contractors, Inc. noted, for example, that the omission of the word "wrongful" in the Act properly eliminated the “legitimate objectives” exception read into the Hobbs Act by the Court in Enmons.250 Furthermore, the comment stated that, properly construed, the "proof" provision was acceptable as well. In their view, if the violence was something more than a minor and unrelated incident, and the employer could testify "that there was a direct connection between the violence and his decision to increase benefits,"251 then the requirements of the section would be satisfied and a prima facie case of violation made out.

For the most part representatives of organized labor agreed with this interpretation of the proposed statute, and, for that reason, were vehemently opposed to it. They objected to the overruling of the Enmons decision by elimination of the term “wrongful” in the definition of extortion on many of the same policy grounds that were advanced by the Court in that case. Witnesses cited numerous reasons why Enmons should not be overruled: The danger of making minor picket line misconduct a federal criminal felony; the danger of overactive and politically ambitious prosectors using this as an excuse to intrude unnecessarily into strike situations; the resulting unwarranted incursion of federal jurisdiction into an

245. Id. at S17.

246. Id. at S18.

247. Id. at S860.

248. 125 CONG. REC. S12204 (daily ed. Sept. 7, 1979).

249. S. 1722, 96th Cong., 1st Sess. (1979), Reform of the Federal Criminal Laws: Hearings on S. 1722, S. 1723 Before the Senate Committee on the Judiciary, Part XIV, 96th Cong., 1st Sess. 11090-484 (1979) [hereinafter cited as Hearings, Part XIV].

250. Hearings, Part XIV, supra note 249, at 10707.

251. Id.

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[Vol. 59:859 area traditionally left to the states; the disruption of the balance already struck by Congress in the labor-management relations area; the chilling effect upon the exercise by employees of other federally protected rights; and the existence of other remedies for labor violence.252

Moreover, the "proof" provision was regarded by labor as inadequate to guard against the evils that would result from making labor activity generally subject to the statute. Thomas X. Dunn, General Counsel for the Building and Construction Trades Department, AFL-CIO, stated:

It is clear that section 1722(b) is designed to create an additional burden of proof in prosecutions for misconduct which occurs in the course of a labor-management dispute. The Government would be required to establish a nexus between the alleged misconduct and the obtaining of otherwise legitimate employment benefits. As a practical matter, however, this burden of proof could be satisfied easily in almost every economic strike where misconduct occurs. It appears that all that the Government need do to satisfy its burden is present the employer involved in the strike who will testify that the alleged violence or threat of violence was a factor in his decision to agree to workers' demands for higher wages or other employment benefit.

Thus, section 1722(b) would not be an effective means of discouraging the Government from applying the proposed extortion statute to any misconduct which occurs in the course of an economic strike.253 Robert M. Baptiste, Counsel for the International Brotherhood of Teamsters, expressed a similar sentiment:

While the amendment was proposed in "recognition that tempers often flare in labor disputes" and all strike-related misconduct should not be a Federal criminal offense, we submit that the proof provisions can so easily be satisfied that virtually all economic strikes where misconduct occurs could be subject to this new Federal extortion penalty.254

Lance Compa, Washington Representative of the United Electrical, Radio and Machine Workers of America, was fearful of the undesireable consequences that could result if the interpretation advanced by Senator Thurmond255 was taken as controlling. He stated:

Furthermore, Senator Thurmond offered a detailed interpretation of the Kennedy Amendment that constitutes dangerous legislative history. Senator Kennedy made no careful explanation of his amendment. Senator Thurmond said the proof requirement would not be necessary if the defendant "was or conspired with" a union negotiator or if the damage was "repetitive," "systematic" or "purposeful rather than mindlessly vindictive."

Applying this interpretation would, first of all, chill any contact between a union negotiating committee and the rank and file members. In

252. Id. at 10045-48, 10691-92.

253. Id. at 10693.

254. Id. at 10049.

255. See note 245 & accompanying text supra.

stead of keeping a firm hand on the strike-which is essential if the committee is to be effective at the bargaining table-a committee will be forced into a "hear no evil, see no evil" position, sequestered from the membership in order to avoid possible prosecutions. Even so, a prosecutor out to nail an aggressive union leader could frighten or entice with promises of immunity a rank and file member to implicate the union official in some damage.

Second, the "purposeful rather than mindlessly vindictive" interpretation effectively removes any protection the Kennedy Amendment might have provided, since any damage in a strike, misguided as it may be, is connected to the purpose of winning the strike.256

909

As drafted, the extortion provisions of S. 1722 represented a compromise which could not be held together because of the strong opposition of organized labor. This, however, opened the door anew to the full range of possibilities including reaffirming the Enmons approach in its entirety, on the one hand, or providing no special exemptions for labor, on the other, as well as several intermediate possibilities.

Eventually, a new compromise was hammered out. It was agreed that the basic definition of the offense of extortion would remain the same, but that the "proof" provision would be replaced with a "bar to prosecution" provision; the "grading” and “jurisdiction" provisions remained unchanged. In relevant part, the extortion section, as finally approved and reported out by the Senate Judiciary Committee, reads as follows:

§ 1722. EXTORTION.

(a) OFFENSE.—A person is guilty of an offense if he obtains property of another

(1) by threatening or placing another person in fear that any person will be subjected to bodily injury or kidnapping or that any property will be damaged; or

(2) under color of official right.

(b) BAR TO PROSECUTION.—It is a bar to prosecution under this section that the offense occurred in connection with a labor dispute as defined in 29 U.S.C. 152(9) to achieve legitimate collective bargaining objectives, unless there is clear proof that the conduct which constitutes the threat or placing in fear required under subsection (a)(1) consists of a felony and the conduct was engaged in for the purpose of causing death or severe bodily injury in order to secure such objectives; and the Attorney General, Deputy Attorney General, or Assistant Attorney General for the Criminal Division certifies in writing that

(A) the facts establish the existence of the additional elements of the offense required under this subsection,

(B) a federal prosecution should be commenced under this section; and

(C) the State is unable or unwilling to proceed with any equivalent prosecution relating to such conduct.2

256. Hearings, Part XIV, supra note 249, at 10764.

257

257. S. 1722, 96th Cong., 2d Sess. (1980) (as reported with amendments).

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[Vol. 59:859 The Committee Report summarized the compromise in these terms: "The Committee has concluded over the objection of a substantial minority that, except in the circumstances set forth in subsection (b) of section 1722, for the purposes of this bill the Enmons decision should not be modified."258 The Committee, in other words, was willing to accept the Enmons proposition that the “legitimacy" of a union's objective was sufficient to justify even the use of physical violence to achieve it, at least in the sense of rendering the violence not illegal under federal law. "On the other hand, the Committee believes that the thrust of an extortion statute should be to punish violent extortionate means to obtain the property of another regardless of the legality of the ends sought and has carried forward current law to that effect in situations not involving a labor dispute."259

That is what the proposed statute says, but what it means is another matter. For example, S. 1722 does nothing to clarify the two main ambiguities of the existing case law. By carrying forward the Enmons rationale of "legitimate" union objectives, the proposed statute also carries forward the ambiguities associated with that rationale.260 Furthermore, the Committee Report on the bill does nothing to clarify the ambiguity. At one point the report notes that the Committee intended to reaffirm the Enmons principle "to the effect that labor officials were not covered for their extortionate activities against employers in the course of a labor dispute, if the objective sought was a permissible goal of collective bargaining."261 Similarly, in discussing the meaning of the phrase "legitimate collective bargaining objectives," the Committee Report notes that this "encompasses activities to secure non-corrupt labor union objectives even if, as in Enmons, those activities would violate other laws and excludes such objectives as efforts to obtain personal payoffs or payments for superfluous services."262

The difficulty, as with the Enmons decision itself, is in fitting the Green facts into such a formulation. Although the objective sought in Green was certainly to obtain "payments for superfluous services," in the colloquial sense, as a legal matter the objective was both "non-corrupt" and "a permissible goal of collective bargaining"; yet a violation was found to exist in that case, undoubtedly because of the presence of violence. The Committee, like the Court in Enmons, obviously did not intend to overrule Green. However, since the presence of violence is no longer a sufficient

258. S. REP. No. 553, 96th Cong., 2d Sess. 645 (1980).

259. Id.

260. See & III-C of text supra.

261. S. REP. No. 533, 96th Cong., 2d Sess. 649 (1980) (emphasis added). 262. Id. at 651 (emphasis added).

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condition for a violation, the reconciliation of results of Green with the wording of the proposed statute is somewhat less than obvious.

With respect to the second major ambiguity, the Committee Report does make it clear that the damage to property referred to in the definition of extortion includes only physical damage to property and does not include mere economic loss or injury. Those kinds of Hobbs Act injuries were, the Committee Report notes, intended to be covered by the proposed section on blackmail rather than the extortion section.263 Section 1723 provides that "a person is guilty of an offense [of blackmail] if he obtains property of another by threatening or placing another person in fear that any person will... (4) improperly subject any person to economic loss or injury to his business or profession. . . ."264 The Committee Report comments that

[t]his carries forward... the present reach of the Hobbs Act,... as interpreted by judicial decisions. It is designed to make clear that this section does not reach legitimate activity, such as strikes, boycotts, or picketing activity undertaken in support of such objectives as increased wages or improved working conditions for employees.265

The significance of this language should be readily apparent. The word "improperly," as used in the proposed section on blackmail, is obviously intended to have the same connotation as the word "wrongful" contained in the Hobbs Act and construed by the Supreme Court. This means that the objective must be an "illegitimate" one. So construed, the blackmail section ties in nicely with the extortion section. If the objective being sought is other than a "legitimate" one, the extortion section is relevant if the "means" involve threats of physical damage to person or property, but if the "means" involve mere threats of economic injury, the blackmail section is relevant.

With respect to the latter, an unduly broad definition of “illegitimate" (i.e., broad enough to encompass the objective sought by the union in Green) would create some difficult problems. It is highly unlikely that the Committee intended to include within the offense of blackmail a union's peaceful picketing to cause an employer to add jobs which he considers unnecessary or superfluous. However, the ambiguities inherent in the central concept of the two sections-namely, the fuzzy notion of "legitimate” versus “illegitimate" ends—makes the statute, in theory at least, susceptible to that construction.

To summarize: If, under the extortion section, the union's objective is other than a “legitimate" one, whatever that means, it is

263. Id. at 648 n.58.

264. S. 1722, 96th Cong., 2d Sess. (1980) (as reported with amendments). 265. S. REP. No. 553, 96th Cong., 2d Sess. 657 (1980) (footnote omitted).