a representative of employees as used in 29 U.S.C.A., Section 186' and in refusing defendants' fourth request for instructions which was as follows:
'4. If you find that the common laborers left the job on December 13, 1951, and that no such laborers returned to work until March or April of 1952, and that they were not subject to call, then the Government has not proved beyond a reasonable doubt that these men were employees of Black Top Paving Company on December 19, 1951, and you must find the defendants not guilty.'
The Court's charge defining 'representative of employees' was based upon the principles set forth in Brennan v. United States, 8 Cir., 1957, 240 F.2d 253, 264, certiorari denied 1957, 353 U.S. 931, 77 S. Ct. 718, 1 L. Ed. 2d 723, and in United States v. Ryan, 1956, 350 U.S. 299, 76 S. Ct. 400, 100 L. Ed. 335.
In connection with their fourth request for instructions, defendants contended that Black Top Paving Company had no employees on December 19, 1951, the date of the offense charged, and that defendants, therefore, were not and could not be 'representatives of employees' within 29 U.S.C.A. § 186, on that date. There was testimony on behalf of the government that work on the project on Route 71 began in August, 1951, that work was discontinued on December 13, 1951, due to inclement weather and was not resumed until March or April of 1952. There was testimony that the laborers on the job were laid off on December 13, 1951, subject to recall in the event work was resumed, that their employment was not terminated and that some were, in fact, recalled when work was resumed in the spring. The Court charged the jury as follows:
'In this connection it is not necessary that the employees of Black Top Paving Company were actually working at the time of the alleged offense, it being sufficient even though they were laid off at the time, that their employment was not permanently terminated.'
The Court is of the opinion that defendants were not prejudiced by this instruction. Paragraphs 7 and 9 of defendants' motion are without merit.
Paragraph 8 of defendants' motion states that:
'8. The Court erred in refusing defendants' motions for the Withdrawal of a Juror made throughout the trial on the ground that the extensive newspaper publicity and notoriety given to labor unions and labor officers, and in particular, to these defendants, created an atmosphere so prejudicial as to deny defendants the possibility of a fair trial.'
During the trial the defendants on several occasions moved for the withdrawal of a juror on the ground of alleged adverse newspaper publicity. On each occasion, as well as in its final instructions, the Court cautioned the jury that they were not to be influenced by publicity and that their decision was to be based only on evidence produced at the trial. It has not been brought to the attention of the Court that the publicity in question created any public excitement or influenced the decision of any juror. Moreover, the government was not in any way responsible for the newspaper stories and they were subject neither to its control nor that of the Court. Under all the circumstances, the Court is of the opinion that the defendants were not prejudiced. United States v. Leviton, 2 Cir., 1951, 193 F.2d 848. Paragraph 8 of defendants' motion is without merit.
Defendants' motion for a new trial will be denied.
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