Blue-collar crime: conspiracy, organized labor, and the anti-union civil RICO claim.

• Author: Levin, Benjamin
• Position: Protecting Workers' Rights an a Post-Wisconsin World: Strategies for Organizing and Action in an Era of Diminished Resources and Embattled Unions

TABLE OF CONTENTS I. INTRODUCTION II. WHY TELL THIS KIND OF HISTORY AND WHY TELL THIS PARTICULAR HISTORY? A. Critical Legal (Cultural) History B. Why RICO: Why Now? III. COMMON LAW CONSPIRACY AND THE NINETEENTH CENTURY UNION IV. A MORE PERFECT UNION: THE NLRA, THE "CULTURAL FRONT," AND THE NEW ERA OF LABOR'S LEGITIMACY A. Legislating a New Deal for Labor: The Wagnor Act's Doctrinal Shift B. Labor's Acculturation: Ideology, Representation, and Remaking an "American" Union V. DISORGANIZING LABOR: RICO's RISE, THE CRISIS IN COMTEMPORARY LABOR LAW, AND THE STRUGGLE TO DEFINE THE SOCIOLEGAL STATUS OF THE MODERN UNION A. Labor's Legislative Losses: Setting the Doctrinal Framework for Modern Labor Law B. The Anti- Union RICO Suits and Their Place in the Landscape of Modern Law 1. RICO's Criminal Roots 2. Civil RICO's Rise C. Corruption, Cartels, and Coercion: The Ideological Significance of the New Assault on Organized Labor.. 1. The Union in the Contemporary Cultural Imagination 2. The Place of the Civil RICO Suit in the Contemporary Cultural Climate VI. CONCLUSION I. INTRODUCTION

Gone are the employer's goon squads and the billyclubs; today's union-busters wear business suits and carry attache cases. Sharp lawyers and Madison Avenue propagandists have replaced the straight-forward coercion of brass knuckles with carefully calculated devices designed to destroy, without leaving any visible bruises, the desire of workers to organize.... There is no excuse for a continuation of the present situation. There are no complex legal mysteries to be solved. (1)

On May 4, 1886, Chicago's Haymarket Square was host to a rally in support of a national strike by workers seeking a standardized, eight-hour workday. (2) Despite derision and hostility from the government and the press, the strike succeeded in hobbling many industries, particularly those that had previously benefited from a national building boom. (3) The Chicago rally, like others across the country, was intended to be a peaceful show of solidarity and to provide a forum for explaining the importance of the eight-hour day. (4) With Chicago police looking on, labor leaders and leftist political activists spoke to the crowd from a speakers' wagon throughout the day without incident; suddenly, for no apparent reason, the police marched on the square and ordered the workers to disperse. (5)

Exactly what happened next is unclear, but it is uncontested that someone hurled a pipe bomb that killed one of the police officers moments later. (6) What had been by all accounts a peaceful rally deteriorated into a chaotic battle during which many were wounded and seven officers and four workers were killed. (7) In the wake of the Haymarket Affair, the speakers and organizers of the rally, as well as members of the immigrant and anarchist communities, were investigated and prosecuted in connection with the pipe bomb death. (8) During the trial, the prosecution failed to offer substantial evidence linking any of the defendants to the actual bombing; instead, the prosecution argued that the "general principles" of the organizers made them conspirators who were legally guilty of the murder. (9) Ultimately, a jury convicted eight of the defendants of murder, and seven were sentenced to death. (10)

On March 5, 2008, nearly a century and a quarter after the Haymarket Affair, Cintas Corporation, the largest manufacturer of business uniforms in the United States, filed suit in federal court in the Southern District of New York, (11) claiming that worker-organizing campaigns by the International Brotherhood of Teamsters, UNITE HERE, Change to Win, and numerous other named and unnamed defendants had violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"). (12) For much of the previous decade the unions had been fighting a highly publicized battle to represent Cintas's employees. (13) As part of their "comprehensive" or "corporate" campaign, (14) the unions had produced fliers and maintained websites dedicated to alerting Cintas employees of their rights and highlighting allegedly objectionable business and employment practices. (15) Cintas claimed that the unions' campaign of concerted action was designed to extort the corporation into adopting a "card-check/neutrality agreement," (16) and also was a means of promoting and engaging in general unfair competition. (17) Cintas's RICO claims were based on the allegation that the comprehensive campaign was extortive and therefore violated the Hobbs Act, (18) which defines unlawful extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." (19)

A year later, the court dismissed Cintas's RICO claim, concluding that it failed to satisfy the requirement of Rule 8 of the Federal Rules of Civil Procedure (20) that the complaint be a "short and plain statement." (21) Not only was the complaint insufficient as a matter of law but also according to the court, the complaint was merely "a manifesto by a Fortune 500 company that is more a public relations piece than a pleading." (22) Although the Cintas claim was dismissed, similar civil RICO complaints against labor organizers have significantly multiplied since the late 1980s; in fact, their use has become almost a standard litigation tactic for corporate employers seeking to fight attempts to unionize their workers. (23)

There is clearly a world of difference between the Cintas RICO suit and the Haymarket Affair. One was a civil resolution of a conflict, constrained by the rules of a courtroom and the strictures of legal procedure, where the other was a visceral, violent clash. One was a glaring loss for organized labor with the unions cast as a repository for bloodthirsty and lawless radicals committed to violence, (24) while the other was a success for labor, with the judiciary upholding the rights of organizers and decrying the co-option of the legal system to smear organizing efforts. (25)

Nonetheless, I begin this historical exploration of employer civil RICO claims against unions by juxtaposing these two moments in American labor history in order to emphasize the importance of the common tropes that unite both incidents and their legal foundations. Essential to the legal framework that underlies each of these labor conflicts is the potential for union activity to be characterized as conspiratory. The anti-union sentiment in both cases--whether it was being used to condemn socially-marginalized radicals in nineteenth-century Chicago (26) or well-organized, politically powerful national labor organizations in twenty-first-century New York (27)--finds root in the concept that the concerted action of workers is somehow a violation of social and legal norms, a betrayal of the accepted terms of the free market system and the manner of negotiating the employment relationship.

With its radical political affiliations, violence, and evocations of immigrant-led class warfare, the Haymarket Riot epitomizes the view of the union as hostile and threatening to the dominant economic and sociopolitical orders. (28) Because the modern suits that this article is intended to address and historicize are civil and generally cast not as complaints against collections of workers but against the faceless, outside organizing entities conducting comprehensive campaigns, the title of this article, with its focus on class and criminality, may initially appear incongruous. By situating the characterization of union organizing and union concerted action in the sphere of "blue-collar crimes," however, I hope to ground the ostensibly impersonal, "civil" RICO claims in the ugliness and immediacy of the Haymarket Riot.

Despite the rise of employer RICO claims against comprehensive labor campaigns, there has been relatively limited scholarly engagement with the subject. While several authors have addressed the growing role of RICO in labor disputes, (29) their work has almost exclusively focused on analyzing these suits within the framework of post-National Labor Relations Act ("NLRA"), (30) labor law and NLRA preemption, or the doctrinal framework of civil RICO's evolution. (31) This article, however, seeks to take a step back from the merits of the latest batch of employer claims and to instead examine these claims in light of broader trends in U.S. labor relations.

This article will trace the historical, theoretical, and doctrinal relationship between conspiracy law and workers' rights to organize, situating the current use of civil RICO claims by employers against unions in the context of past legal treatments and cultural understandings of labor unions. I will argue that the contemporary RICO claims based on unions' comprehensive campaigns are not simply a novel litigation tactic that can be analyzed for legal merit, actively opposed by union counsel, and dismissed (as has often been the case). (32) They are also a potentially significant means of harkening back to an earlier moment in American political consciousness and cultural history when unions enjoyed a much lower social and legal standing than they do today. (33) As a result, I will argue that these claims, when viewed in their historical context, become a striking marker of the duality of labor's standing in contemporary society. In other words, the dismissal of Cintas (34) and similar cases may demonstrate a trend towards broader legal protections for the rights of workers to organize and an improvement in the union's legal standing, but the complaints themselves may reflect an inversely proportional devaluation of the union's social position and cultural acceptance. It may be that unions can confront corporations with greater impunity, but does the return to the legal framework of conspiracy evince a return to a cultural understanding of the union as a pernicious social force?

The article will proceed in four parts...