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Month September 2016

21st Century Trade Union Conspiracy Trial

12 Men of Local 401

It’s fitting that the return of the trade union conspiracy trial would take place in Philadelphia, the city of the infamous Philadelphia Cordwainers Trial of 1805, the first known trade union conspiracy case in America. Beginning with the genesis of the first combinations of wage laborers in eighteenth-century England, trade unionism has been perceived and prosecuted as a conspiracy against private property—and rightly so. What is a trade union but a permanent conspiracy against private property and the inviolable right to private property? Engels designated trade unions as schools of war in The Condition of the Working-Class in England in 1845, and the processes underlying workers’ control and workers’ power made manifest in trade unionism then remain in operation today.

A car bomb erupts in the parking lot of the Pittston Coal Group’s Lebanon, Virginia headquarters in 1989. A scab UPS driver in Florida is stabbed multiple times with an icepick when he attempts to defend a delivery truck from having its tires punctured in 1997. Ten thousand tons of grain in Longview, Washington, are dumped from hoppers onto railroad tracks and rail cars have their brake lines cut by longshoremen in 2011. While the various sections of the political left were enamored with the promise of the September 2012 Chicago Teachers Union strike and its dissident rank-and-file leadership, community coalition-building and grassroots mobilizations, three months later over Christmas 2012, members of Ironworkers Local 401 in Philadelphia were sabotaging the active construction site for a Quaker Meeting House that was being built with non-union labor by cutting steel beams and bolts, setting fire to a crane and carving up set concrete with an acetylene torch.

Lacking all of the ideological pretenses of the Chicago teachers’ strike, the actions and fate of the Philadelphia ironworkers were ignored by all but labor’s enemies. According to the FBI, “the indictment charges RICO conspiracy, violent crime in aid of racketeering, three counts of arson, two counts of use of fire to commit a felony, and conspiracy to commit arson. Eight of the 10 individuals named in the indictment are charged with conspiring to use Ironworkers Local 401 as an enterprise to commit criminal acts. Joseph Dougherty, 72, of Philadelphia, the financial secretary/business manager of Local 401, was one of the eight individuals charged with racketeering conspiracy.”[1] One night of sabotage in December 2012 garnered the full attention of the Federal government’s repressive apparatus.

Tools like wiretaps set in the union hall and bugging union officers’ phones, and the investigative resources of multiple Federal agencies were deployed against Local 401 of the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers. Incidents of organized force and illegal tactics by the union going back to 2008 were documented, compiled and used to arrest two more men, for a total of 12 members and officers of Local 401 facing indictments. Conspiracy and racketeering were the centerpieces of the Federal prosecutor’s list of charges, which marked an epochal shift in America’s labor relations regime. Eleven of the 12 men took plea deals; seven agreed to turn state’s evidence and testify against the lone union member who refused to plead guilty: then–72-year-old Joseph Dougherty, Financial Secretary and former President of Local 401. Dougherty was tried and convicted on all six counts against him in Federal court and received a sentence of 19 years in prison and half a million dollars of restitution in July 2015.

While the acts of sabotage and arson against the Quaker Meeting House construction site was the catalyst for Federal intervention, the full menu of illegal tactics utilized by Local 401 over the years in pursuit of union objectives was necessary to use RICO in a novel, but predictable, way. The case against the 12 members and officers of Local 401 and the trial of Dougherty marks the final evolution of the narrative of labor racketeering. From focusing on the predatory schemes of organized crime and exposing organized crime infiltration of trade unions, to the illegal tactics of organized labor and the return of the trade union conspiracy trial.

The Clayton Act and Labor Racketeering

Exemption of trade unions from conspiracy laws was a demand featured in the original platform of the American Federation of Labor’s predecessor and precursor, the Federation of Organized Trades and Labor Unions of North America, at its founding convention in 1881. It wasn’t until the passage of the Clayton Antitrust Act in 1914 that juridical normalization of trade unionism was accomplished. This was the ascension of trade unions from clandestine to legal status in America, where they would no longer be persecuted and prosecuted as illegal conspiracies against private property and wage cartels obstructing commerce.

But a creeping problem emerged with the introduction of the word “racketeering” to the vocabularies of business and government. The word itself as it is used today is said to have originated with the Employers’ Association of Chicago as a means to describe the International Brotherhood of Teamsters in 1927. Accusations of racketeering became a functional doppelganger to redbaiting. Politicized trade unions were redbaited, while less politicized trade unions were charged with being dominated by gangsters. After the CIO purged its communist-led affiliates and amalgamated with the AFL in 1955, racketeering overtook redbaiting as the preferred ideological weapon against labor in the United States.

Beginning with the passage of the 1973 Racketeer Influenced and Corrupt Organizations Act (RICO), ostensibly non-partisan police search and destroy missions against organized crime routinely led to Federal judges installing puppet regimes in labor organizations in the form of Federal trusteeships and consent decrees, regardless of whether existing union officers were targets of criminal indictments, with union financial transactions, contract negotiations, the contents of union constitutions and even the ability to strike or engage in any form of concerted action all taken over by a government-appointed trustee. All of the expenses for anti-racketeering trusteeships (which often last for years) are paid for by union members. In the 1980s and 1990s, civil RICO suits and/or Federal trusteeships were deployed against nearly 20 labor organizations, the most important being the three International unions targeted by the Federal government: the International Brotherhood of Teamsters (1989), Laborers’ International Union of North America (1995), and Hotel Employees and Restaurant Employees International Union (1995). But in 2013–14 the police infrastructure built up and empowered to dismantle La Cosa Nostra was deployed against a local union without any connection to organized crime: the members and leaders of Ironworkers Local 401.

US v. Enmons

Congress passed the Anti-Racketeering Act, also known as the Hobbs Act, in 1934 to combat labor racketeering. It was worded in such a way as to give law enforcement the ability to arrest and prosecute gangsters who had infiltrated trade unions while explicitly preventing the Act from becoming a union-busting tool. Supreme Court interpretations of the Act exempted trade union demands from prosecution, even if such demands are objectively unreasonable and openly obstruct commerce. A 1973 Supreme Court case, US v. Enmons, expanded these exemptions for organized labor when it ruled that the Hobbs Act could not be used to prosecute union members and officers on Federal charges of extortion when they pursued lawful union objectives through illegal means. The case originated with members of International Brotherhood of Electrical Workers Local 2286 who were on strike against the Gulf States Utilities Company. A group of union members were hit with Hobbs Act charges for “firing high-powered rifles at three Company transformers, draining the oil from a Company transformer, and blowing up a transformer substation owned by the Company. In short, the indictment charged that the appellees had conspired to use and did in fact use violence to obtain for the striking employees higher wages and other employment benefits from the Company.[2] The Supreme Court ruled in favor of the workers, noting that collective bargaining is not considered an act of extortion under Federal law and thus does not present a predicate crime for prosecution under the Hobbs Act.

The underlying acts which prompted the recent spectacle in Philadelphia included filling locks with superglue, cutting steel beams and bolts, setting fire to a crane, beating non-union workers with baseball bats, slashing tires, verbally threatening sweatshop contractors and sabotaging construction equipment. In other words, the arrested ironworkers were using utterly vanilla expressions of organized force that were not unique to their organization, trade, industry or city. Collective bargaining by violence does not meet the definition of extortion under the Hobbs Act and falls within the US v. Enmons exemptions, leaving such illegal tactics to be prosecuted at the local level as isolated incidents, but episodes of organized force over a six-year period were documented and used to show a pattern of “racketeering” activity in Local 401 under the RICO Act, leading Federal agents and prosecutors to define the local union as a criminal enterprise even though the objectives pursued with illegal tactics were lawful collective bargaining objectives rather than the personal enrichment of union officers (the cornerstone of labor racketeering prosecutions under RICO). According to the Department of Justice, racketeering is not a necessary element for prosecution of Hobbs Act violations, but Hobbs Act violations can be used to demonstrate a pattern of racketeering activity for prosecution under the RICO Act. Dougherty’s trial was a racketeering case without racketeers, an extortion case without using anti-extortion statutes and a conspiracy case where the objectives and actions in question were explicitly exempted from the statutory definition of conspiracy.

Philadelphia Building Trades

As of 2012, the estimated composition of the local building trades unions was 99 percent male, 76 percent white and 67 percent who did not live in the city limits. When members of the laborers’ union (LIUNA) are removed from the sample, the racial composition skews further to 81 percent white.[3] Affirmative action in the building trades unions originated in Philadelphia with the 1969 “Philadelphia Plan,” Lyndon Johnson’s executive order 11246—which established mandatory hiring guidelines for minority workers on government funded construction projects in the city through a quota system. It was a test case and later marketed as a model for the rest of the country to bring black workers into the skilled trades, primarily in metropolitan areas.

It was bitterly fought in court by the Contractors Association of Eastern Pennsylvania. At the 29th Convention of the International Union of Operating Engineers, General President Wharton reported, “Without the training provisions, the Philadelphia Plan was doomed to failure… The hard fact remains that there has been no significant increase in minority membership in the local unions covered by the Philadelphia Plan. Simplistic formulas are no substitute for trained mechanics and an equitable dispatching system.”[4] Under his direction, the IUOE developed its own “Affirmative Action Plan” for its local unions in the Pennsylvania region which established an alternative means for increasing minority membership in the building trades and thus more skilled minority workers on construction projects: a change in union policy to drastically increase the number of minority apprentices. IUOE Local 542 in Philadelphia won Federal exemption from the Philadelphia Plan quotas on the basis of its internal plan, which largely became the model for the other building trades unions.

In a report on minority membership in the skilled trades in Philadelphia and specifically in Ironworkers Local 401 in 1995, a New York Times reporter inadvertently outlined the role of contractors in perpetuating white hegemony in construction: they are merely required to make a “good faith effort” to hire minority tradesmen, which often means simply making formal inquiries to the building trades unions who are responsible for supplying the labor pool. This situation was noted by an officer of a carpenters’ union district council:

Pulling a folder of letters from contractors out of the clutter on his desk, he says they all make the same request—that he refer qualified minority workers for possible employment in future projects.

“I have my secretary call them and ask how many minorities they want tomorrow and where to send them,” Mr. Coryell says. Do they ever request any?

In reply, Mr. Coryell summons his secretary, Maureen McGovern. “They all say, ‘Thank you, we’ll make a note of it,’ she said. “None has ever called back, and I have been doing this since 1981.”[5]

The same article gives the impression that IUOE Local 542 challenged the Philadelphia Plan in court as a kind of white resistance to black entry to the trade, when in reality the union was put in the position of being mandated to supply minority operating engineers who largely did not exist—leaving the union to formulate concrete means by which to change this. By the 1990s, Local 542 had a 21 percent minority membership; twp black members had been elected to the nine-member Executive Board and 30 percent of members dispatched to jobs from the hiring hall were minorities. Marc Halpern, a court appointed “outside expert” whose job it was to oversee the IUOE “Affirmative Action Plan” in Philadelphia in the 1980s–90s, concluded that the problem of minority tradesmen maintaining equal employment opportunity with their white fellow union members was a creation of the employers, the contractors, rather than the unions. This was the experience of a black member of Ironworkers Local 401, who noted that he would be dispatched from the hiring hall relatively often, but would be routinely laid off.

Another aspect of the problem was noted by the then-president of the AFL-CIO Building and Construction Trades Department Robert Georgine: “Minorities have been trying to enter the skilled trades just as opportunities have shrunk.” Apprenticeship programs administered by local building trades unions have been the practical means by which minority workers join the skilled trades. As economic recession or open crisis reduces the number, size and duration of available jobs, the labor pool controlled by the trade unions necessarily tightens to protect the integrity of the existing membership. Without apprenticeship opportunities, which require several years to complete, the racial composition of the unions becomes static. Ironworkers Local 401 is a product of this environment. A 2008 article from the Philadelphia Inquirer profiles the demographic history of Ironworkers Local 401 under Joseph Dougherty’s leadership:

Not only was this union nearly 100 percent white, but it was nearly 100 percent Irish, too – and not just any Irish either. Most members were descendants of immigrants from Newfoundland.

Now, the 804-member still-primarily-Irish local is one of the most diverse of the Philadelphia building trades. Now, 96 of the members are black and 19 Hispanic. Overall, nearly one in five members is from a minority group, according to data given to City Council.

Joseph Dougherty joined Local 401 in the 1960s, became local president in 1982 and has served in a variety of leadership positions ever since. Like IUOE Local 542, Local 401 signed a consent decree to increase minority membership by reaching out to minority communities to fill apprenticeship positions after facing the identical problem of having an all-white membership unable to dispatch minority tradesmen to construction jobs. But the ironworkers’ trade has a long established heritage of Native American workers entering the trade going back to the turn of the twentieth century—however, they are often highly mobile and follow large jobs around the country, taking out union traveling cards or local union work permits when entering another local’s jurisdiction (as of 2015 Local 401 charged $5.00/week for a work permit and $50.00 per transfer). One such ironworkers’ union member was a chief of the Onondaga tribe in New York, who Dougherty reached out to in an effort to convince mobile Native American ironworkers to relocate permanently to Philadelphia as members of Local 401 while simultaneously opening apprenticeships in the local to young Native American men. As of 2008, Local 401 had 36 Native American members. Like the experience of the carpenters and operating engineers, contractors shifted the blame for low minority participation to Ironworkers Local 401, and like the other trades the ironworkers, through Dougherty, were able to demonstrate that the low minority participation on publicly funded construction projects was due largely to contractor resistance, not union foot-dragging:

Applicants started by taking a test. Those who passed were put to work immediately. If they impressed the foremen and supervisors, they would be admitted to the apprentice program, when there was enough work to build an apprentice class.

The best got in—the rest had to wait, even if they were sons and brothers.

He said that he managed to increase minority numbers in the apprenticeship programs, but that it took additional nudging from the court to get contractors to hire the minority ironworkers his union produced.

The contractors told the judge that Dougherty wasn’t supplying minority workers. They didn’t know Dougherty kept daily records of available workers, noting whether contractors had requested minority workers. They also didn’t know Dougherty had shown the records to Judge Green.

“They were caught lying,” he said. “After that, I got more cooperation.”[6]

None of this denies the existence of racism among white members of the building trades, or the existence of structural racism in the systems running between union hiring halls, Project Labor Agreements (“checker boarding” where minority members are dispatched to PLA projects while white members work on projects without racial quotas), union and non-union contractors and construction employment itself. Local 401, like IUOE Local 542 and many other building trades unions, opted to replace the exclusive hiring hall system to allow contractors to directly hire union tradesmen when work was sparse. In practice, this allowed white union foremen to select who would be hired for jobs—generally other white members, often with familial ties. Black members of Local 401 have long struggled to win representation on the local’s executive board. However, Joseph Dougherty’s and Local 401’s record is nonetheless better than most.

Two Labor Movements

In a statement released after it was revealed that union members had sabotaged, vandalized, burned up their project, the local Quakers said, “Chestnut Hill Friends Meeting stands in support of the ideals and achievements of the labor movement, which strongly resonate with our long-held beliefs in the equality of all and the right of all workers to a living wage and safe working conditions, and with our testimonies of peace, integrity, and community,”[7] and yet, when it was time to select a contractor to build their $8.5 million project, an opportunity to put this resonance of long-held beliefs into tangible form, they accepted the bid of a non-union contractor to save money.

But the labor movement is not an idea; it’s a social and physical fact. The Philadelphia ironworkers’ union implicitly recognized that the class struggles of wage labor against capital can’t be neutered and domesticated. It comes from a place where trade union discipline is derived from the legitimacy embodied in the local union leadership and where winning new and defending past material gains is not just a social but a physical struggle as well. Their tactics are a reminder that solidarity is not a moral choice but a material necessity, that words and ideas are worthless if they are not anchored in actions.

Three months before the Quaker Meeting House construction site in Philadelphia met an acetylene torch, Chicago teachers went on strike for eight days. The Chicago Teachers Union and its strike action represent all of the things that the socialist and progressive left finds appealing in the labor movement. Its leadership comes from a dissident reform and rank-and-file group called the “Caucus of Rank and File Educators” (CORE); it’s committed to a social justice or social movement program and emphasizes grassroots community partnerships through a diverse alliance of teachers, students, parents, taxpayers, politicians and others in a general defense of public education and delivering professional excellence. This is the kind of labor movement that groups like the Quakers in Philadelphia support. It’s the kind of labor movement that the government has been trying to foster with the carrot of legal protections and the stick of Federal regulations and law enforcement for decades.

But a trade unionism, which exists through government fiat, is not capable of standing on its own when precarious legal protections are removed. We came extremely close to witnessing the Wisconsinization of American public employee unionism nationwide with the recent Friedrichs v. California Teachers Association stalemate; a narrow miss due only to the unexpected expiration of Supreme Court Justice Antonin Scalia before he could render a vote on the case.

The reaction of Philadelphia’s trade unionists to the charges and Dougherty’s trial were mixed. Pat Gillespie, longtime Business Manager of the Philadelphia Building and Construction Trades Council AFL-CIO, was quoted in October 2014 as saying, “I’m saddened that people are in such a desperate state of mind that this kind of thing would be done… It’s kind of ironic. Do you know how many schools and churches the trades have built pro bono? It’s hard to count… And then they have a place of worship that’s desecrated before it’s even done? That’s just sad.”[8] But after Dougherty’s conviction in July 2015 when local union members organized a support rally, Gillespie said he would, “be at the rally despite the image it may portray. If the rally is a rally to support Joe, then never mind the consequences.” The organizer of the rally, Jim Moran, an old timer in the Philadelphia labor movement, called Dougherty’s trial, “part of a corporate attack on unions.” These words became fodder for labor’s progressive allies at the media outlet Daily Kos, who had this to say about Dougherty, Local 401 and their supporters:


Is there anyone dumber than Jim Moran?

For union members to rally around such criminals as the 12 convicted members of the Ironworkers union aids and abets the right wing’s attacks on unions.

What is it about arson, violence, extortion, vandalism and threats to 8 and 11 year old children and a woman that union leaders Jim Moran and Patrick Gillespie find worthy of a public rally?

These idiots are handing ammunition to every right wing Republican opponent of unions.

Joseph Dougherty and the other 11 union convicted criminals should be condemned and shunned by anyone who truly supports all of the good things that come from unions.[9]

Daily Kos, it should be noted, routinely publishes exceedingly generous articles on the Chicago Teachers Union and has done so for years. Gillespie’s mixed public statements to the media are representative of a labor movement at war with itself. Since the dissident movements of the 1960s–70s like Steel Workers Fightback and Miners for Democracy, the AFL-CIO has moved further away from the workplace and sought to dilute labor’s ultimate leadership role to one in which labor has abdicated into just another constituent voice of the 99 percent, The People, and transparently accountable to liberal, progressive and community allies. The condemnations published by Daily Kos speak to the same impulse which led the AFL-CIO 2013 Convention to bring the Sierra Club, NAACP, National Council of La Raza, Mom’s Rising and United Students Against Sweatshops into more formal partnership with the labor movement while programs like Union Summer create a transmission belt for college and university student activists to become union staff members, replacing union structures derived from within union memberships.

Local 401 and the Chicago Teachers Union each represent the two combatants within every American labor organization: creating, building and maintaining organizations capable of extracting new and protecting past material gains extracted from employers, forming centers of resistance of labor against capital—and the contemporary pressures of non-violent passive resistance and civil disobedience, community partnerships and alliances based on the values of democratic-civil society at the foundation of social movements.

If the agency shop is banned, if the scope of bargaining is legislatively limited to wage increases, if public sector collective bargaining agreements are statutorily limited to 1 year terms—will there be another Chicago teachers’ strike, will there be a Chicago Teachers Union, will there be such gushing displays of social justice, community activism? With Wisconsin public sector unions as a guide, and their overnight starvation of two-thirds or more of their members and overnight evaporation of their basic functionality, the answer is a simple no.

The kind of labor movement we need won’t be hurt by legislative or judicial curtailment of bargaining rights, won’t be afraid to lose allies who give only verbal and not material support to organized workers, and won’t wilt under adverse political climates. That kind of labor movement, the kind we had when the Clayton Act was force fed to Congress, was dealt a major blow in a Federal courtroom in 2015. It’s terribly revealing that no one noticed. Something very fundamental to the socialist movement is in the hand that held the torch, swung the bat, slashed the tires, dumped the grain, blew up the car, stabbed the scab: the legitimacy of the officers who gave the order or led the union, the discipline to carry out any task or the initiative to take sides and to hell with the consequences, the genetically anti-democratic content of workers’ control and workers’ power, class discipline and class violence. Aside from questions of theory and practice, our conceptions of labor’s class struggles, trade unionism and the revolutionary movement, Joseph Dougherty deserves the same support as was given Mooney and Billings, Sacco and Vanzetti, Haywood, Pettibone and Moyer and the McNamara brothers. As much as this case reminds us what kind of labor movement we used to have, it equally reminds us what kind of socialist movement we used to have as well.

  1. [1]Racketeering and Arson Charges Filed Against Members of Ironworkers Union, FBI press release, February 2, 2014, FBI archives.
  2. [2]US v. Enmons, 410 US 396 (1973).
  3. [3]Despite pledges to diversify, building trades still mostly white males,” Axis Philly, June 10, 2013.
  4. [4]Mangum and Walsh, Union Resilience in Troubled Times: The Story of the Operating Engineers, AFL-CIO 1960–1993, M.E. Sharpe: New York (1994).
  5. [5]Louis Uchitelle, “Union Goal of Equality Fails the Test of Time,” New York Times, July 9, 1995.
  6. [6]Jane M. Von Bergen, “One trade union’s road to diversity: How ironworkers surpassed other building trades,”, February 7, 2008.
  7. [7]Simon Van Zuylen-Wood, “After Arson, Chestnut Hill Quakers Defend Labor Movement,” Philadelphia Magazine, January 23, 2013.
  8. [8]MaryClair Dale, “Indictment: Pa. Ironworker Union ‘Goon Squad’ Committed Arsons, Intimidation,” NBC Philadelphia, October 5, 2014.
  9. [9]Why would Phila labor leaders help anti-labor agenda?Daily Kos, July 19. 2015.