LABOR LAW AND THE BOSTON CALLING CASE

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The Boston Calling case, officially titled United States of America vs. Kenneth Brissette; Timothy Sullivan, probably should never have been brought. There seem ways to have disciplined these men for what they did short of a criminal prosecution.

I will discuss the issues raised later. First I direct you to read the Appeals Court Judge’s finding that Brissette and Sullivan could be properly indicted pursuant to the Hobbs Act, which, says the Court, incorporates the common law definition of extortion : http://media.ca1.uscourts.gov/pdf.opinions/18-1254P-01A.pdf

We all know, thanks to years of public discussion, what Brissette and Sullivan did: they intervened in Crash Line Productions’ September 2, 2014 concert permit application to insist, as a condition of the permit being granted, that it hire workers from Local 11, workers that Crash Line said it did not need. This they had no legal power to require, and thanks to (City Director of Operations) Joe Rull’s directive to them, they knew it. Yet they did it anyway.

Thus the question arises : what should be done by way of disciplining Brissette and Sullivan ? And another question : are City officials barred from advocating for the hiring of Union workers, even to the extent of making union hires a condition of permit issuance ?

The second question is easy. In the Appeals Court opinion one finds this sentence : “The licensing agreement between Crash landing and the City did not obligate Crash landing to hire workers that it needed to put on a festival from any union or otherwise place restraints on Crash Landing’s hiring practices.” This sentence would suggest that the City could have a permit applicant enter into an agreement that would require hiring union workers.

The Court’s opinion also notes that Crash landing had a pre-existing contract, with another firm, to supply it the workers it needed for its event. By their holding up the permit issuance, Brissette and Sullivan disregarded Crash landing’s existing contract obligations. Instead of, from the outset, negotiating an agreement with Crash landing to require that it hire Local 11 workers — an agreement which the Court suggest they would have had authority to do — Brissette and Sullivan simply imposed, on their own hook, whether or not they realized it, their own demands on all concerned. They acted capriciously, carelessly.

Advancing the cause of union workers and union wages is a necessary undertaking and should be a political and economic priority at a time when wages have fallen behind the huge rise of housing prices. I applaud Brissette and Sullivan for their commitment to the union argument. I cannot, however, credit the amateurish way in which they applied their commitment in the Crash Landing case. They deserved to be admonished in no uncertain terms : suspended or maybe even fired by the City administration, including for the embarrassment generated.

Admonition ceased to be an option once the United States attorney brought her criminal indictment of the men under the Hobbs Act. Now the entire history of government regulation of union activity came into play. The NLRB has jurisdiction over what sorts of job action and organizing tactics a union — or its friends — may employ. Criminal sanction is available for actions that result in intimidation and worse. Extortion is pretty much defined by labor conflict intimidations, and when such intimidation is general to a union action, prosecution is a must. Yet it’s not always easy to tell where legal hardball ends and criminal action begins. A large number of NLRB cases turn on how the facts are delineated. In the Brisette and Sullivan case, however, there seems to be very little of  intimidation, just a lot of hurry, or maybe a desire on the part of Crash landing to be Mr. Nice Guy.  Amateurish, Brissette’s permit game surely was; annoying, too. But intimidation ? Hardly. Also this : Crash landing was legally entitled to its permit ; why did it not go to Court, on an emergency basis, seeking an injunction ordering the City to issue it ? Would that nit have put an end to the Brissette and Sullivan business ?

I have a hard time justifying the United States Attorney bringing a “corruption case” where the victimized party did not seek ordinary legal remedies available to it.

Even though Brissette and Sullivan were told that it was illegal to do what they did, I think their mindset was that they were just negotiating; that if push came to shove, they would have no choice but to issue the permit. Did Crash landing say to them, “if you don’t issue us this permit, we’re going to Court” ? It seems not. If so, then I doubt that Brissette and Sullivan felt they were intimidating anybody. That they have had now to entrust their futures to a motion by their lawyers for “:judgment notwithstanding the verdict” — a normal motion but hardly a common one — is a shame. I think those who are protesting the conviction have it right : that officials will now shy away from advocacy for unions without first consulting, and perhaps even having to retain, a lawyer.

—- Mike Freedberg / Here and Sphere