Legislation Striking Crimes Code Carve-Out Protecting Union Intimidation Imminent

The news coverage surrounding the trial and conviction of Ironworkers Local 401 boss Joseph Dougherty on federal extortion charges last month highlighted, in graphic detail, the reprehensible activity of some unions against merit shop contractors. It’s safe to say he didn’t intend it, but Dougherty has become the most influential advocate for proposed legislation in Harrisburg to give state prosecutors the means to target union violence.

Pennsylvania's criminal code currently declares harassment, stalking, and even making deadly threats to be protected activities when done by a party engaged in a labor dispute. No one, management or labor, should be able to lawfully utilize the tactics of harassment, stalking, or threatening. What starts as harassment and threats often escalates to violence and destruction of property. Legislation that will soon be introduced by House Judiciary Committee Chairman Ron Marsico (R-Dauphin) strikes those carve-outs from the code.

An FBI press release that accompanied the federal indictment against Ironworkers Local 401 stated: “The indictment alleges that business agents would approach construction foremen at those work sites and imply or explicitly threaten violence, destruction of property or other criminal acts unless union members were hired.” Clearly, if these unwelcomed threats and harassing statements were kept in check, these situations would not have escalated as they did.

“The current exclusions in state law should shock the conscience of every Pennsylvanian,” said PMA Executive Director David N. Taylor. “The culture of intimidation and violence created by ‘The Helpful Union Guys’ of Ironworkers Local 401 proves that Pennsylvania’s laws against stalking, harassment, and making deadly threats must be applied equally to everyone, including those involved in labor disputes – both labor AND management.”

The peculiar protection language was apparently slipped into an anti-stalking bill moving in the General Assembly in 1993, according to those familiar with the law. It received little notice until it began to be used by defense attorneys and noted three years ago by a U.S. Chamber of Commerce report, “Sabotage, Stalking & Stealth Exemptions: Special State Laws For Labor Unions.”

Stalking, threats and other forms of intimidation would land most of us in jail. But as one Philadelphia labor attorney said prosecutors have no incentive to bring charges involving labor disputes because they would prefer not to use their limited resources in cases they are almost sure to lose.

“The real power in removing this provision is that it will give prosecutors a reason, an incentive through use of a prosecutorial weapon they currently don’t have,” said Philadelphia labor and employment attorney Neil Morris.

The language in the carve-out provision mimics an opinion in a 1973 U.S. Supreme Court case, U.S. v. Enmons that similarly shields thugs from charges of harassment and other intimidating and criminal activity as long as it furthers the cause of a union, like protecting wages. But that ruling was rejected with the Dougherty conviction earlier this year, and now labor attorneys say it opens the way for civil actions under the federal RICO statute by merit shop contractors. The state carve-out remains on the books though, and Wally Zimolong, a Philadelphia attorney who represents contractors with union disputes, explained why it’s vital the provision be removed from the code even with the federal conviction.

“You’re not going to have federal prosecutors pursuing all these union violence cases,” Zimolong said. “And when it comes to criminal cases like stalking, that’s not within a federal prosecutor’s jurisdiction. Those are state level laws in the Crimes Code.” News of the imminent introduction of the Marsico bill was greeted enthusiastically by Jack Zimmer , President & CEO of ABC Keystone, which represents merit shop contractors in the commonwealth.

“I’m encouraged that the legislature is finally going to take the necessary steps to put a stop to the senseless atrocities that are allowed to continue because of a loophole in our Crimes Code,” Zimmer said. “ABC members and their families are routinely subjected to threats, stalking, and other terroristic acts by individuals who see their actions as common place and acceptable in society because of the current law.”

A case in point occurred two years ago. Former Ironworkers business agent Ed Sweeney was acquitted of threatening Sarina Rose, vice president of development at Philadelphia-based Post Brothers Apartments. Post Brothers uses non-union labor, but not exclusively, to refurbish residential and commercial properties in the city. Sweeney’s defense attorney cited the carve-out in the Crimes Code. However, justice was eventually served as Sweeney pleaded guilty to extortion and arson as part of the federal case that brought down Joseph Dougherty. Sweeney is scheduled to be sentenced in Philadelphia on April 27, 2015.

Equal protection under the law is one of the foundations of sound government. Both labor and management are responsible for fostering a safe and productive work environment. It is clear that parts of the labor culture in Pennsylvania are broken and it is state law that is perpetuating that culture. A change in culture must begin with a change in the law.

To view the most recent episode on PMA Perspective that focuses on this issue, click here. (https://vimeo.com/120370832 )

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