Smithfield Packing v. The Constitution

Smithfield Packing v. The Constitution | Global Labor Strategies (first of a series)

A Federal court in Virginia ruled on January 29th that Smithfield Packing could proceed with a civil lawsuit filed under the Racketeer Influenced and Corrupt Organizations Act (RICO) against the United Food and Commercial Workers, Jobs With Justice, and others. At issue is a corporate campaign spearheaded by the union to support its organizing drive at Smithfield’s Tar Heel North Carolina pork processing plant. The action if successful could push the US labor movement into a legal black hole in which it could vanish.

The suit is one of two recently filed by corporations that threaten to turn the US labor rights clock back to the 19th century by dusting off the use of conspiracy laws to stop union activities. The suit attacks basic rights of free speech, free association, and criminalizes the legislative process by undermining the right to petition government. It affects not just unions but activists and advocacy organizations engaged in corporate campaigns no matter what the cause.

In what appears to be a new corporate legal offensive against organized labor, in November, the Wackenhut Corporation, a US subsidiary of the British based Group 4 Sericour, filed another RICO suit, this one against SEIU for activities surrounding the union’s attempt to organize workers employed as security guards by the company. In this and subsequent posts we will mainly focus on the Smithfield Packing suit since the brief has been made public and is posted on-line.

Smithfield Packing’s Tar Heel Plant

Smithfield Packing’s Tar Heel plant is the largest pork processing plant in the world. The plant employs more than 5,000 workers who slaughter up to 32,000 hogs a day. About 60% of Smithfield’s workers are Latino immigrants, most of the rest are African-American. Wages start at under $9 per hour and working conditions are brutal. The pace of work is fast and injuries are commonplace. The atmosphere is repressive: Smithfield operates its own police force with a reputation for brutality and with the power to arrest and hold workers in an on-site jail cell. Indeed the work is so unpleasant and dangerous that turnover at Tar Heel is 100% per year—for every 5,000 worker hired, 5,000 leave. The plant was featured in a 2005 Human Rights Watch report entitled “Blood Sweat and Fear: Worker Rights in US Meat and Poultry Plants”.

The UFCW has been trying to organize the plant since it opened in 1992. Two elections were held in the 1990s. The union lost both but the results of both were overturned by the NLRB because of unfair labor practices on the part of the company. According to the Associated Press:

Earlier this year Smithfield reached a settlement with the National Labor Relations Board and agreed to pay $1.1 million in back wages, plus interest, to workers it fired during past union-organizing elections. A federal appeals court ruled in 2006 that the company improperly influenced elections in 1993 and 1997.

The Rico Suit

The RICO Act was originally passed in 1970 to combat organized crime networks by allowing the government to prosecute people for participating in a criminal conspiracy where direct evidence of a specific crime did not exist —think mafias and other criminal gangs. Under RICO, prosecutors must show two related criminal acts—drawn from a long list of crimes enumerated in the law—within a 10 year period to establish a “a pattern of racketeering”. From a civil liberties standpoint conspiracy laws like RICO are always suspect. As predicted at the time, the law quickly became a staple of government prosecutors going after a variety targets well beyond traditional organized crime networks. During the 1980s civil law suits filed under RICO became a common avenue by the government to address corrupt business practices and mob influenced unions.

RICO also allows for private civil suits to recover damages and this is the route that Smithfield and Wackenhut are using to attack the unions and their allies. Both argue that corporate campaigns are a criminal enterprise designed to force union recognition and that they represent a pattern of racketeering on the part of unions and their supporters. In its 99 page brief Smithfield claims, “(d)efendants [are involved in a] conspiracy to extort money and property from and to inflict damage upon Smithfield……through the commencement of a Corporate Campaign against Smithfield.” The suit goes to explain that “The purpose of a corporate campaign, as explained repeatedly in published union literature, is to coerce an employer’s compliance with the desires of a labor organization, regardless of the degree of employee support and without involving the NLRB……”

Smithfield, a serial labor rights violator, has demonstrated time and again that it has little regard for its workers or the niceties of law. After the experiences of the 1990s the UFCW realized that under present conditions, with a pro-management NLRB and a company schooled in union avoidance tactics including harassing and firing activists, they would have little chance getting a fair election. Instead, the union launched an aggressive corporate campaign to force recognition and get Smithfield to the bargaining table.

The UFCW’s corporate campaign follows an established union strategy that has been updated in the last few decades to pressure resistant employers to bargain in good faith. The union began by building a strong case against Smithfield as a labor and human rights abuser—they had a lot to work with—and then took the case public. In the process they built an alliance of civil rights groups, social justice organizations, religious figures, and immigrant rights advocates to pressure the company to deal with the union.

Smithfield details the campaign in its brief, which makes good reading for those interested in exactly how a corporate campaign works from the perspective of the targeted company. But the brief is also chilling reading since what Smithfield is aiming to do is suppress the constitutional rights of free speech, freedom to assemble, freedom of association, and the freedom to petition government to redress grievances.

In the brief, Smithfield charges that “(t)he defendant UFCW employs extraordinary corporate campaign tactics as a regular way of doing business.” To carry out this campaign the unions formed a “conspiracy” with Change to Win, Jobs with Justice, and others in a “….wide ranging campaign of extortion of Smithfield.”

Smithfield claims activities conducted as part of the campaign demonstrate both the existence of a conspiracy and a pattern of racketeering necessary to sue under RICO. In reality, the union and its supporters exercised their basic constitutional rights to free speech, freedom of association, and the right to petition the government to redress grievances. The elements of the conspiracy, according to Smithfield, include the exercise of just such constitutional rights:

• That the union commissioned and distributed a report by Research Associates of America, a co-defendant in the suit, on health and safety conditions as Smithfield entitled “Packaged With Abuse: Safety and Health Conditions at Smithfield Packing’s Tar Heel Plant” that the company did not like.
• That the union and its allies interfered with Smithfield’s business by conducting demonstrations at supermarkets in North Carolina, New England, and elsewhere to alert customers to Smithfield’s labor practices. Civil rights, religious, immigrant rights groups, consumer advocates and other public figures participated in these demonstrations. Leaflets were distributed to customers and store managers asked to drop Smithfield products. Smithfield says that this harmed its business.
• That the union and its allies introduced resolutions supporting their organizing campaign in to governing bodies in “…Cities, Townships and Organizations”. For instance,

In or around September 2006 agents of Defendants UFCW and JWJ encouraged members of the New York City Council to effect and publish a resolution condemning Smithfield and banning the sale of products within its municipal jurisdiction. …..On or about October 25, 2006, at a regularly scheduled meeting of the Council, the Council Members introduced Resolution 582-06, a resolution “calling on the City of New York to cease purchasing products from Tar Heel, North Carolina’s Smithfield Packing Company, and urging supermarkets operating in our city to cease purchasing Smithfield products from Tar Heel, North Carolina.

Similar resolutions were introduced and adopted in Boston, Cambridge, Somerville, and Chelsea Massachusetts. In addition, the Potomac Association of the Central Atlantic Conference of the United Church of Christ were “encouraged” to adopt a “Resolution on Worker Justice at Smithfield”, condemning the company’s actions.

The UFCW—with major help from Jobs with Justice—has built a broad and effective alliance to support the Smithfield campaign. The company has been publicly branded as a labor and human rights violator. No matter how well documented the UFCW’s charges are—and they are well documented-- Smithfield Packing Company does not like what the union is saying and doing. They could dispute those facts. They could even sue the union for defamation as companies faced with corporate campaigns have done in the past. But that is not what they doing.

Instead Smithfield is attempting to do something much more sinister. As labor rights have been eliminated bit by bit workers have used their constitutional rights to resist the unjust and coercive conditions they face. Smithfield is now trying to eliminate those constitutional rights. What Smithfield Packing and Wackenhut are saying is that when people exercise their right to speak freely, to protest, to hand out fliers, to rally public support for their cause, to build support networks and alliances, or to try to get government bodies to address their concerns they may be engaging in a criminal conspiracy and a pattern of racketeering. And that’s why theseare such an important case.

If successful the suits would have broad implications for all advocacy groups, for free speech rights, and for the ability of citizens to petition government to act on social issues. The suits are but one more indication of a corporate drive to strip US workers and their organizations of their remaining labor/civil/human rights. People everywhere should be concerned.

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Related: PBS' NOW Program "Food Fight"