The opinion of the court was delivered by: SORG
Defendants were found guilty by the verdict of a jury of violating Section 186(b) of the Labor Management Relations Act, 29 U.S.C.A. § 186(b), which reads as follows:
'It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from any employer of such employees any money or other thing of value.'
On December 19, 1951, the defendants were business agents of Local 1058, International Hod Carriers, Building and Common Laborers Union, and, as such, they were charged with the duty of 'over-seeing and carrying out of working agreements' and had the power to 'stop the job' where contract conditions were not adhered to. Defendant were also members of the Executive Committee of the Union.
William Wiggins and William Spencer were co-partners in Black Top Paving Company which partnership was engaged in the performance of a contract with the Commonwealth of Pennsylvania for the improvement and resurfacing of a 5-mile section of Pennsylvania State Highway Route 71, near Belle Vernon, Pa. Local 1058 and Black Top Paving Company were parties to an agreement in which Local 1058 was designated as the sole representative of employees of Black Top, a union shop was set up, provision for the collection of dues by check-off was made, and wages and working conditions were established. State Highway Route 71 was a part of the federal system of highways and was a feeder route to three main interstate highways. It was frequently used by vehicles bearing registration plates issued by states other than Pennsylvania.
A bituminous mix used for the resurfacing of Route 71 was supplied to Black Top Paving Company by Burrell Construction Company. Liquid asphalt used in the mix was shipped from Baltimore, Maryland, to Donora, Pa. Clay pipe used on this project for tile underdrain was acquired from Bowerstown, Ohio.
On December 19, 1951, the defendants received and accepted $ 200 from Wiggins and Spencer, partners of Black Top Paving Company.
Defendants have filed a motion in arrest of judgment and a motion for judgment of acquittal, or, in the alternative, for a new trial.
The motion in arrest of judgment is based on the ground that the indictment fails to state a crime within the purview of 29 U.S.C.A. § 186. Defendants did not discuss this matter either at oral argument or in their brief and the Court previously considered and passed upon this question on a motion to dismiss the indictment prior to trial. The motion in arrest of judgment will be denied.
It should first be noted that defendants made their only motion for judgment of acquittal at the close of the government's case in chief, and did not renew the motion either after presenting their own evidence or at the conclusion of the government's rebuttal testimony. However, after a careful review of the record this Court is of the opinion that there is ample evidence to support the verdict of the jury and that the 1st, 2nd, 3rd, 4th and 5th reasons for the motion assigned by defendants are without merit. Defendants' motion for judgment of acquittal will be denied.
Defendants contend in paragraphs 6 and 10 of their motion that 'the Court erred in its charge to the jury that if Pennsylvania Route 71 was used in 1951 to accommodate interstate traffic to any extent, then the government had proved interstate commerce to bring the charge in the indictment within the purview of 29 U.S.C.A., Section 186', and that 'the Court erred in refusing the defendants' motion to strike from the record the testimony of Henry Stinson.' (The name of the witness apparently referred to is John Stinson.)
The Court's charge on the element of interstate commerce was based on the principles set forth in Hulahan v. United States, 8 Cir., 1954, 214 F.2d 441, 445, certiorari denied 348 U.S. 856, 75 S. Ct. 81, 99 L. Ed. 675, as approved in United States v. Lowe, 3 Cir., 1956, 234 F.2d 919, and United States v. Varlack, 2 Cir., 1955, 225 F.2d 665.
There was substantial testimony that Route 71 served vehicular traffic from outside the Commonwealth of Pennsylvania and that a substantial part of the materials used on the project came from outside the state. Under these circumstances, in accordance with the principles stated in the cases cited, the Court ruled in effect that the evidence, if believed, was sufficient to establish that the employees of Black Top Paving Company were 'employed in an industry affecting commerce' and submitted only the question of the credibility of the witnesses to the jury.
Defendants state, however, that the Court erred in instructing the jury that this element of the offense was established if the jury believed that Route 71 was used by interstate traffic 'to any extent' and contends that the Court should have charged that Route 71 must be used 'substantially rather than incidentally as a facility of interstate commerce' to satisfy this element. The Court's charge in this connection was based on the reasoning applied in National Labor Relations Board v. Denver Building & Const. Trades Council, 1951, 341 U.S. 675, 683-684, 71 S. Ct. 943, 949, 95 L. Ed. 1284, wherein ...