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Government Attempt to Shoehorn Union Activity into Hobbs Act Violation Rejected by First Circuit

by Christopher Zoukis

The U.S. Court of Appeals for the First Circuit handed the federal government a significant defeat in a September 8, 2017 opinion, in which it threw out all but one conviction of two union members.

Joseph Burhoe and John Perry were members of Teamsters Local 82, a division of the International Brotherhood of Teamsters, located in south Boston. Local 82 provided union labor at trade shows throughout Boston. In a 30-count indictment, the Government charged the two men with extorting non-union companies as well as fellow union members between 2007 and 2011.

The Government’s theory was that certain actions undertaken by the defendants constituted violations of the Hobbs Act, as well as federal racketeering laws. The Hobbs Act attaches criminal liability to anyone who “obstructs, delays, or affects commerce . . . by . . . extortion . . . or commits or threatens physical violence to any person or property….” The Government contended that what the defendants considered normal union activity, such as threats to strike, requiring the use of union labor, and obtaining union wages for Local 82 members constituted criminal activity under the Hobbs Act. After a six-week trial, the defendants were convicted of multiple Hobbs Act violations, as well as racketeering and racketeering conspiracy.

In tossing the convictions, the First Circuit looked to the interplay between the Hobbs Act and the National Labor Relations Act (“NLRA”). Construing the Hobbs Act narrowly, so as not to conflict with the NLRA, the Court determined that Hobbs Act extortion, which by definition involves “wrongful” use of force or fear, could not include conduct undertaken in the pursuit of “legitimate union objectives.”

The extortion activity alleged by the Government involved threats by the defendants to picket—allegedly communicated in an aggressive manner—if union labor were not used. The demands to use union labor were made even to event organizers who did not need additional labor because they were already fully staffed with non-union workers. The defendants argued that this was still legitimate union activity protected by the NLRA. The First Circuit agreed.

“Under the jury instructions, Hobbs Act liability would appear to attach any time a union threatened to picket peacefully for jobs at the prevailing wage that an employer did not want or need the union’s members to perform,” wrote the Court. “We find troubling a theory of the case that would criminalize labor union activity to achieve such an end when the NLRB’s interpretation of § 158(b)(6) labels the exaction of a wage for that very same end as not being an unfair labor practice.”

The defendants were also found guilty of extorting “rights to democratic participation.” They included “rights to initiate or participate in judicial proceedings, to file grievances and complete affidavits, and to equal treatment in voting.” The Government alleged that union policies and activities, such as the use of seniority lists and threats of violence against members, constituted extortion under the Hobbs Act.

The Court began its discussion by providing the definition of the term “extortion” under the Hobbs Act, i.e., obtaining “property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” After a lengthy analysis, the appellate court concluded that the Government failed to establish the defendants engaged in extortion. According to the Court, the Government failed to establish that what was supposedly extorted was property and that the union members who were allegedly extorted consented. They did not.

 Instead, what the Government established was coercion, which the Court defined as the use of “threats and acts of force and violence to dictate and restrict the actions and decisions of” others. However, coercion is “specifically not included in the Hobbs Act.”

The Court sustained the defendants’ conviction for prohibition against certain persons holding office but reversed all other convictions against the defendants with the sole exception of Burhoe’s conviction for extortion of a non-union company. The Court vacated that conviction and remanded for a new trial. See: United States v. Burhoe, 871 F.3d 1 (1st Cir. 2017).  

 

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