Former FBI Director James Comey testifies about his firing by President Donald Trump during a Senate Intelligence Committee hearing on June 8, 2017.(Photo: Diego M. Radzinschi/ALM)
|

As U.S. senators, government and private lawyers and others tussle over any criminal implications of President Donald Trump's “hope” that James Comey walks away from investigating the former White House national security adviser, labor law offers another clue to the analysis.

Whether or not “I hope” could support a charge of obstruction of justice, the phrase has justified the finding of a violation of the National Labor Relations Act, a longtime labor lawyer in New York noted Friday in a post at the blog On Labor.

Andrew Strom, a labor lawyer since 1993 and associate general counsel to the Service Employees International Union, Local 32BJ in New York since 2002, found a 1995 National Labor Relations Board decision that presents facts similar to the Trump-Comey scenario.

The circumstances surrounding Trump's private statements to Comey are well-known. In short: Trump reportedly made the statement in a Feb. 14 meeting with Comey. Referring to the FBI investigation of Russian contacts with former National Security Adviser Michael Flynn, the president said, “I hope you can see your way clear to letting this go, to letting Flynn go,” according to notes Comey said he took immediately after the meeting.

“When it's the president of the United States with me alone, saying 'I hope this,' ” Comey testified before the Senate Intelligence Committee on Thursday, “I took it as: This is what he wants me to do.” (Trump earlier on Twitter said Comey“better hope” there are no tapes of his private conversations. To which Comey responded on Thursday: “Lordy, I hope there are tapes.”)

Strom, a senior contributor to the blog On Labor—his posts have no connection to his union employer—discovered that in KNTV Inc., a four-member board affirmed an administrative law judge's findings that the San Jose, California-based television station's president violated labor law when he told a staff reporter: “I hope you won't continue to be an agitator or antagonize the people in the newsroom.”

The judge, Jay Pollack, who heard the unlawful termination dispute at trial in Oakland, found the use of the word “hope” to be “coercive” in the context of reporter Ken Wayne's push to get the station president to talk about wages and other matters.

The labor board in its opinion said this statement “was made to Wayne by [the station president], the respondent's highest ranking official. It was made during a meeting, in [the president's] office that Wayne was required to attend alone despite his request that respondent meet with the employee committee.”

“Sound familiar?” asked Strom in his blog post, which he titled “Workers Understand a Boss's Hopes.”

“In other words, the expert agency that regularly adjudicates disputes about whether particular statements by an employer rise to the level of coercion has held that when the president of an organization expresses his 'hopes' in a private conversation with a worker, those comments will likely have a 'chilling effect' on the employee,” Strom wrote.

Strom's own “investigative” effort was triggered by a water cooler conversation Friday morning.

“When I got to work this morning some of my coworkers and I were talking about the [Comey] hearings—obviously a big water cooler topic,” he recounted in an interview. “Being we're steeped in this kind of thing, the comparison seemed obvious to us. One of my co-workers said, 'I wonder if there's an NLRB case on this,' so I looked.”

Then there it was. The NLRB's ruling from October 30, 1995. The remedy for the TV station employee? The board ordered KNTV to make Wayne “whole for any loss of earnings and other benefits he suffered.”