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February 9, 1961

Dominic ALAIMO

The opinion of the court was delivered by: MURPHY

Defendant found guilty by verdict of a jury on thirty-four counts of violating § 302(b)(d) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 186(b)(d), *fn1" moves for judgment of acquittal or a new trial. *fn2" In support thereof defendant asserts failure of proof, errors in ruling upon evidence, in the conduct of the trial, and in the charge of the court.

A person who is a representative of employees employed in an industry affecting commerce may be held to have wilfully violated § 186(b) upon a showing that he received or accepted money from the employer of such employee (or from the agent of such employer) with knowledge (1) that he was receiving or accepting money, and (2) that the person who was giving him the money was an employer of employees (or the agent of such employer) that the represented. United States v. Lavery, supra, 161 F.Supp. at page 286, and see United States v. Ryan, supra, 350 U.S. at page 305, 76 S. Ct. at page 404; United States v. Ryan, 2 Cir., 1956, 232 F.2d 481, 483.

 'The chief, if not only, purpose of the section was to put a stop to practices that, if unchecked, might impair the impartiality of union 'representatives',' United States v. Ryan, supra, 232 F.2d at page 483; 'to prevent employers from tampering with the loyalty of union officials, and disloyal union officials from levying tribute upon employers,' L. Hand dissenting in United States v. Ryan, 2 Cir., 1955, 225 F.2d 417, at page 426, and see United States v. Ryan, supra, 350 U.S. at pages 305-306, 76 S. Ct. at pages 404-405; Arroyo v. United States, 1 Cir., 1958, 256 F.2d 549, 551, reversed on other grounds 359 U.S. 419, 79 S. Ct. 864, 3 L. Ed. 2d 915, as to 'shaking down the employer'; United States v. Pecora, 3 Cir., 1959, 267 F.2d 512, as to buying labor peace.

 Taking that view of the evidence, including all inferences reasonably deducible therefrom in favor of the verdict, see Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680, there was substantial competent evidence that on thirty-four separate and distinct occasions, *fn3" defendant, a Committeeman of Local No. 8005, United Mine Workers of America, *fn4" and, as such, a 'representative' 5 of employees of the Knox Coal Company, an industry affecting commerce, *fn6" received and accepted various sums of money *fn7" from Knox, all in violation of the provisions and purposes of the Act.

 Under § 302(c) of the Act, 29 U.S.C.A. § 186(c) the broad provision of subsection (b) is made inapplicable '* * * (1) with respect to any money or other thing of value payable by an employer to any representative who is an employee or former employee of such employer, as compensation for, or by reason of, his services as an employee of such employer; * * *' *fn8"

 '* * * payments that subsection (c) covers would fall within (a) and (b) except for the exception.' Mechanical Contractors Ass'n of Philadelphia, Inc. v. Local Union 420, supra, 265 F.2d at page 611.

 Arroyo v. United States, supra, 256 F.2d at page 552, teaches 'a representative of employees would be guilty under subsection (b) if he received money or other thing of value from an employer unless the receipt were covered in the exceptions stated in subsection (c)'; Arroyo v. United States, supra, 359 U.S. at page 424, 79 S. Ct. at page 867, that both employer and employee would be guilty if the payment were ostensibly made for one of the lawful purposes specified in § 302(c), Id. 186(c), if both knew that such a purpose was merely a sham.

 It is incumbent upon one who relies upon an exception to set it up and establish it. McKelvey v. United States, 1922, 260 U.S. 353, 357, 43 S. Ct. 132, 67 L. Ed. 301; Carnahan v. United States, 8 Cir., 1929, 35 F.2d 96, 99, 67 A.L.R. 1035; Evans v. United States, 1894, 153 U.S. 584, 590, 14 S. Ct. 934, 38 L. Ed. 830; Stokes v. United States, 1895, 157 U.S. 187, 191, 15 S. Ct. 617, 39 L. Ed. 667; United States v. Mertine, D.C.D.N.J.1946, 64 F.Supp. 792, 795; 27 Am.Jur. Indictments and Informations, § 107, and see IX Wigmore on Evidence, 3rd Ed., §§ 2511, 2512(a) and cf. Id. § 2497.

 Without weighing the evidence or determining the credibility of witnesses, see Glasser v. United States, supra, 315 U.S. at page 80, 62 S. Ct. at page 469, suffice it to say there was sufficient evidence from which a jury might, and we may assume did, find that the payments accepted and received by defendant were not received or accepted as compensation for services rendered as an employee.

 In view of the foregoing, defendant's motion for judgment of acquittal will be denied.

 As to the motion for new trial --

 Defendant's unsupported request for inspection of the Grand Jury minutes of testimony of witnesses who had previously testified was properly denied. See Pittsburgh Plate Glass Co. v. United States, 4 Cir., 1958, 260 F.2d 397, 402-404, affirmed 1959, 360 U.S. 395, 79 S. Ct. 1237, 3 L. Ed. 2d 1323.

 Defendant himself did not testify but having on cross examination and through other witnesses attempted to show performance of services for which he was entitled to compensation, the government, in rebuttal, over objection, *fn9" was permitted to show that defendant, testifying on January 9, 1958, before a Federal Grand Jury, stated *fn10" he was in the dress business since 1953 and that he ceased working in the mines two years previously. Such testimony was clearly admissible, see VIII Wigmore, op. cit. supra, § 2363, p. 727; United States v. Johnson, D.C.M.D.Pa.1947, 76 F.Supp. 542, 548, affirmed 3 Cir., 165 F.2d 42, 45-46; Metzler v. United States, 9 Cir., 1933, 64 F.2d 203, 206; United States v. Miranti, 2 Cir., 1958, 253 F.2d 135, 138; United States v. Grunewald, D.C.S.D.N.Y.1958, 164 F.Supp. 644, 646. Its significance is at once apparent when compared with the period covered in the indictment, i.e., from August 15, 1957, to December 31, 1958.

 After some intervening questions which defendant, asserting the privilege against self-incrimination, declined to answer, defendant reiterated that he had worked in the mines until 1956 and made other admissions. ...

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