In labor disputes, clients often bypass New York and Chicago firms to work with West Virginia’s Mark Carter
Published in 2013 West Virginia Super Lawyers magazine
By Bill Glose on June 11, 2013
From his seventh-floor office, Mark Carter can look at the weathered faces of industrial brick walls in downtown Charleston, beyond which are miles of forest. On a clear day, he can see the snow-capped Appalachians. The moaning of coal trains is a constant reminder that this is a city of blue-collar workers, the perfect place for Carter, who specializes in traditional labor law, employment law and labor relations for Dinsmore & Shohl.
“Most of your waking hours are on the job,” says Carter, “and your experience on the job defines whether you’re going to have a happy life or not, whether you’re going to have a productive life, a worthwhile life. So I take the issue of work very, very seriously. I believe that all work is honorable, and I want to be part of improving the American work experience.”
Spread out on his shelves, among other things, are mementos from labor disputes he’s handled in more than 30 states and territories stretching from Alaska to Puerto Rico. There’s the walrus bone club he got after handling a case in Anchorage; the Coca-Cola picture frame from a case in Mobile; tire spikes, known as “jack rocks,” left behind by angry Teamsters in Detroit.
“That was a violent time,” says John Jaske of the drama in Detroit. He was the senior vice president for labor relations at Gannett Co., the media holdings company that owned The Detroit News, one of the two Detroit newspapers whose workers were striking. “I had armed guards at my house for a month. In Detroit, we had hundreds of arrests, hundreds of [employee] discharges.”
Jaske knew he would have to bring a national expert into the fray. He skipped over New York, Chicago and Los Angeles, and instead turned to Carter’s three-attorney office in Charleston.
“The RICO stuff that we did was pretty esoteric and [an] exotic area of the law, and [Carter] was really on top of it,” says Jaske. “We knew it was a tough issue. Mark and [other counsel] said, ‘We’re kind of making new law here, but we’re going to give it our best shot.’ And he gave it more than his best shot.”
Carter’s expertise is so well-known that he has been called to testify before the U.S. Congress on federal labor law issues and is a frequent commentator for Fox News and C-SPAN. The Developing Labor Law, a behemoth of a handbook, includes a chapter that highlights Carter’s precedent-setting civil anti-racketeering case. He is active with several trade associations in Washington, D.C., and was appointed for three terms on the Federal Services Impasses Panel, which explains the gold cuff links at his wrists bearing the blue-bordered seal of the president of the United States.
“I grew up in a one-stoplight town,” says Carter, “so the opportunity to serve the president of the United States was just a mind-blowing experience to me. … [At] a Rose Garden speech, [President George W. Bush] greeted some of the folks who attended, and I got to say hello. … It’s something the Cub Scout in me will always remember.”
Carter grew up in a small but comfortable home in Berrien Springs, Mich. His father worked at the Whirlpool factory, and his grandfather was a West Virginia and Pennsylvania coal miner and president of his local UMWA union in Pennsylvania. His grandfather was the first of his line to leave West Virginia, where the rest of his ancestors were born and raised dating back to the 1700s. “I may be Midwestern by birth,” says Carter, “but I have West Virginia blood running in my veins.”
Carter thought a career as a lawyer was unattainable. He’d never met a lawyer in his life, but he did play one in a high school production called Night of January 16th. “It was actually a competitive courtroom drama,” says Carter, “because there were two different endings to that play. One ending was if the prosecutor won. One ending was if the defense counsel won. And we selected jury members from the audience and they made the decision. I lost the first night because I was too aggressive with the jury, and then the remaining nights, I won because I was more deferential to the jury. That was my first legal lesson.”
After earning a scholarship, he graduated with honors from the University of Michigan in 1982. Upon graduating, he couldn’t find a job in his chosen field—communications—so instead, he worked at the Whirlpool factory and as a lumberjack. After a year, his father gave him some advice: “Don’t be afraid. You can accomplish anything.”
Becoming a lawyer suddenly seemed possible. He went to Loyola University in New Orleans, where he excelled and was offered an internship at the attorney general’s office in Charleston in the summer of 1984.
“He was just fascinated with law and the logic of getting to a particular conclusion,” says Silas Taylor, senior deputy attorney general for West Virginia. “Mark was always finding the right cases and pulling out the language [to support his point].”
Carter considers his internship a lucky break because he was afforded the chance to gain experience that placed him ahead of his peers. “He did a lot of appellate work,” says Taylor. “We were selective with what intern we picked to do that. It’s difficult work; it’s intellectually intensive, but he was well-suited to do that.”
He also fell in love with Charleston; so he transferred to West Virginia University College of Law, graduating in 1986. Carter’s first law job was with Smith, Heenan & Althen, a boutique labor and employment firm in Washington, D.C. He was one of three attorneys assigned to the Charleston office. As a labor lawyer, he couldn’t have picked a better time to come to West Virginia. The state was boiling over with labor disputes in the coal industry, which was the area of expertise of his boss and mentor, Forrest Roles.
“It was exciting times,” says Roles, “and Mark jumped into it with both feet. [Our firm] got into several disputes such that we were stretched too thin. I had to trust him doing things that people who were practicing labor law for 30 years hadn’t done. So he got a great amount of experience and was very well liked by our clients.”
Being an associate, Carter’s pay scale was the lowest, so when clients with tenuous cases and wallets walked through the door, they were dumped in Carter’s lap. Such was the case in MHC Inc. vs. UMWA out of the Eastern District of Kentucky, a civil RICO action arising out of a mining labor dispute that had been engulfed by serious violence, including murder. That decision came down in 1988.
Historically, it’s been alleged that many unions were controlled by organized crime. Even so, no one had used the Racketeer Influenced and Corrupt Organizations Act [RICO] to halt the bloodshed and bring a union back to the bargaining table. Not until this case, when Carter filed a civil RICO action against the United Mine Workers of America.
“It shocked everybody when we survived a motion to dismiss because it was very novel,” Carter says. “The client was able to negotiate a settlement with the adverse party. Nobody wanted to file those lawsuits because in order to have standing to file one of those lawsuits, your company would have to endure a pattern of very violent activity. But for those companies who did confront that, who believed themselves to be the victim of a pattern of criminal activity involving violence, that remedy became available. And we were sought after because of our expertise in that field.”
Then Detroit came calling.
In 1995, when Carter’s secretary handed him the phone and told him John Jaske from Gannett was on the line, Carter figured it was a reporter who wanted a quote. Jaske disabused him of that notion and asked if Carter wanted to take over a civil RICO action involving Detroit’s two newspapers. The Detroit Free Press and The Detroit News had been forced to lay off numerous drivers, pressmen and distributors, so the workers unions went on strike to oppose the layoffs.
“Of course I was familiar with it,” says Carter. “It was a huge case. And I said, ‘Yes!’ Then he asked me what my rate was, and I told him, without thinking, what my Charleston, West Virginia rate was. And he went, ‘Great!’”
Perhaps he could have asked for more money, but he couldn’t have asked for more publicity. The Kentucky case had received little notice outside of its region, but the Detroit strikes were front-page news across the country, with the picket lines portrayed as battle zones.
“The unions of Detroit are as tough a place as there is to be an employer facing a violent union,” says Roles. “Mark’s experience came in very handy. He walked into [tough cases] as a young man who knew the answers when the people—good lawyers, experienced lawyers who hadn’t been through the cauldron with the miners—didn’t know the answers, didn’t have suggestions, didn’t know where to go.”
In the Detroit case, union opposition raised two different motions to dismiss. The judge relied upon Carter’s previous Eastern District of Kentucky case as the foundational precedent to shoot down the motions. “What it established very clearly in the legal community is that these cases were sound, these cases had real jurisprudential merit, and if parties chose to engage in patterns of violence alleged to that complaint, then they were going to be subject to civil racketeering charges,” says Carter, who points out that litigation alleging racketeering and serious violence have dramatically decreased.
“There were a number of factors that brought an end to the strike,” says Robert Battista with Butzel Long, which served as general counsel for Gannett in Detroit. “The RICO action was one of them. There was a lot of pressure that the RICO action put on the unions, so I think it was a pressure point that helped bring about a resolution of the matter.” Of course, Carter strives to be less combative and focus on trying to bring parties together. “The real goal is to get to an agreement without a strike,” Carter says.
In a stressful line of work, Carter maintains good humor. He points to a colored sketch of a courtroom scene on the wall. It comes from a 1989 decision that he won in the 4th Circuit. When Carter saw the sketch on the evening news coverage of the case, he sprang into action. “It shows me from the back. I’ve got like long, flowing blond hair and these broad shoulders [tapering to my waist in] a V,” he says. “When I saw it on television, I called them up and said, ‘Buddy, you have got to sell me that because I look like Thor and nobody is ever going to portray me like that again in my life.’” Then Carter throws his head back and howls.
But he has a serious side, too. His voice cracks when he reflects on how the travel that goes with his profession requires him to be away from his family.
“What I think about and have thought about all these years,” he says, “am I doing something that makes a difference? And thus far in my career, which is by no means over, yes, I am. I don’t like violence; I don’t like bullying; and the litigation I’ve been involved in has had a positive impact on dealing with those things.”
Now that he’s an elder statesman at his firm, he figures it’s time to share his good fortune with the younger associates. “If you’re between the ages of 25 and 30, the chance that you’re going to get to travel about the United States is pretty low,” Carter says. “But, honest to goodness, I want to give younger attorneys that opportunity because I just want to stay home.”
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