… 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 or well-organized, politically powerful national labor organizations in twenty-first-century New York–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….
….. 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). 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. 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 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 organized around three loosely defined historical moments–the height of the wave of anti-union criminal conspiracy charges in the mid-nineteenth century, the creation of modern labor protections in the 1930s, and the struggle for union legitimacy in the contemporary global economy….This article will ultimately argue that these cases and the plaintiffs’ recycling of tropes of labor as criminal, conspiratory, or extortive should serve as a catalyst for legislative reform and a recommitment to organized labor as a positive social force….