United States v. LOCAL 807 OF I. BROTHERHOOD, ETC.

• Decision Date: 04 April 1941
• Docket Number: No. 170.,170.
• Citation: 118 F.2d 684
• Parties: UNITED STATES v. LOCAL 807 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA et al.
• Court: U.S. Court of Appeals — Second Circuit

118 F.2d 684 (1941)

UNITED STATES v. LOCAL 807 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA et al.

No. 170.

Circuit Court of Appeals, Second Circuit.

April 4, 1941.

Edward C. Maguire and Louis B. Boudin, both of New York City, for appellants Local 807, etc., and Cahill.

James D. C. Murray, of New York City (Louis B. Boudin, and Daniel Kirchman, all of New York City, of counsel), for other appellants.

John T. Cahill, U. S. Atty., of New York City (Edward J. Ennis, David L. Marks, and John L. Burling, Asst. U. S. Attys., all of New York City, of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

These appeals are from convictions under two separate indictments (consolidated for trial); the first, for a conspiracy to violate the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note; the second, for a conspiracy to violate the "Anti-Racketeering Act, 18 U.S.C.A. § 420a et seq." The evidence was such that the jury might have found the following facts. The individuals accused were truck drivers in the City of New York, and members of the defendant union, Local 807 of the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America. Campbell and Furey were delegates of this union; the others held no office. Large quantities of merchandise enter the City of New York from other states in motor trucks owned and operated by individuals and corporations engaged in the trucking business, who employ their own truck drivers to bring the trucks into the City — generally to warehouses on the west side — and to unload them. The accused objected to this and insisted that they should either drive and unload, or should at least unload, all trucks entering the City from outside the territorial jurisdiction of the union. For this service they demanded $9.42 for each large truck, and $8.41 for each small one, these being union wages for a full day's work. The operators resisted these demands, but the accused forced their claims upon them in some instances by actual violence to their drivers and trucks; in some by threats of such violence; in others by persuading receiving clerks not to receive the loads. At times the operators refused to allow the accused to have any part in the handling of their loads; more often they let them do some of the unloading; but in almost all cases they were forced to pay the full day's wage. After this had gone on for some time, a number of the operators were forced to sign agreements with the union, by which its members were to take over their trucks as soon as they entered the City, to drive them to their destination, and there to unload them. All the accused were bona fide truck drivers and, with possible exceptions to be noted later, would have accepted the job of driving and unloading the trucks, had the operators consented. Their conduct was concerted; and it was for the most part either directed or countenanced by the delegates, Campbell and Furey, who did not themselves ride or unload the trucks.

The judge charged the jury that if they believed the accused to have committed these acts, it was a violation of both the Sherman Act and the "Anti-Racketeering" Act. As to the second indictment, although he told them that they must find that the money demanded and received was not "the payment of wages by a bona fide employer to a bona fide employee," and that the accused were not guilty "if the money which they * * * obtained * * * through the use of force and violence or threats * * * was paid as wages, and if the defendants who received the money were bona fide employees and the truck operators who paid the money were bona fide employers," he nevertheless added that the sums paid could not be regarded as wages if they "were not wages so paid in return for services performed * * * but were payments made * * * to induce the defendants to refrain from interfering unlawfully with the operation of their trucks." Later he said: "If * * * what the operator was paying for was not labor performed but merely for protection from interference by the defendants with the operation of the operator's trucks, the fact that a defendant may have done some work on an operator's truck is not conclusive." Moreover he refused requests which in substance would have told the jury that the extortion of money by threats of violence was not within the act, although no services were rendered, unless it was the object of the conspiracy to extort the money without rendering any service; that is, that if the accused stood ready to do the work, it was not a crime to take the pay.

The convictions under the Sherman Act cannot stand after the decision of the Supreme Court in Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044. We have very recently considered the application of the doctrines there laid down in United States v. Gold, 2 Cir., 115 F.2d 236, and what we there said will serve here as well; for there was no evidence of any concerted agreement to fix the price of trucking or of the commodities carried; nor was there any evidence that the action of the accused had in fact affected those prices. The first count of the "Anti-Racketeering" indictment was drawn under subdivision (a) of § 420a of Title 18 U.S.C.A.; it alleged that the accused had conspired to obtain money by violence and threats of violence directed against the drivers and trucks of the operators. The theory of the prosecution was that the unaccepted proffer of services by the accused, even though they made them in good faith, did not convert the payments into "the payment of wages by a bona-fide employer to a bona-fide employee," — the exception in subdivision (a). The second count was for a conspiracy under subdivision (b) of § 420a and added nothing of substance to the first, unless we are to construe the subdivision as eliminating the exception which we have just quoted. The whole statute is very loosely drawn and we are not sure what subdivision (b) does add to subdivision (a), beyond making it an offence to extort "property * * * under color of official right." "Property" in subdivision (b) presumably includes "money" in subdivision (a) and, the phrase, "consent, induced by wrongful use of force or fear" in subdivision (b) must include a "threat to use force," in subdivision (a); if so the two subdivisions to some extent appear to overlap. However that may be, we cannot suppose that the exaction of wages by a "bona-fide employee" is forbidden by subdivision (b) after being expressly excepted from subdivision (a). We can attach no meaning to the third and fourth counts.

The case therefore turns upon the meaning of subdivision (a); and that is plain enough save for the exception. We believe that the exception covers labor disputes, and indeed was primarily directed to them; for to exclude them would make it very nearly brutum fulmen. Theoretically it might indeed apply only to situations in which an employee procured by threats the payment of wages due under a contract which the employer had made without coërcion; but there are two objections to so circumscribing it; first, the language is general and suggests no such distinction, and second, such occasions would be extremely rare. As to the first, if any employer is coërced into making a contract, the coërcion ordinarily persists until the wages fall due, so that it is proper to speak of them as being "obtained" by the original threats, or violence; and if the coërcion does not persist, and the employer has become complaisant, there should be no crime anyway. As to the second objection, it would be an extremely rare occasion when coërcion would be applied merely to collecting the wage upon a contract freely made. Practically always the crux of a labor dispute is who shall get the job and what the terms shall be; and such pressure — lawful or unlawful — as is put upon the employer is at the time the contract is made. After that it is seldom necessary to renew the pressure; its effect usually continues, as we have just said. To confine the exception to cases where the original contract was voluntary would therefore leave out the great mass of instances in which the issue would ever arise. The adjective "bona fide," qualifying both employer and employee, was not in our judgment added to cut out coërced contracts. Although the promisor may avoid such a contract, it is a contract until he does; and even after he has, he must restore any benefit he has received from the promisee's performance. Restatement of Contracts, §§ 480, 499. Congress can hardly have had any such niceties in mind as the difference between the agreed wage and the benefit to an employer of the services rendered in case he avoided a contract for duress. The words had quite another meaning in our opinion; they were designed to limit the exception to cases in which the employee really did the work for which he was paid, however he might secure the job; and to exclude cases where he disguised the levy of blackmail by a pretext of service never in fact rendered. For the foregoing reasons we do not believe that the act made it a crime for a labor union to get jobs or an increase in wages for its members, even by threats or violence. We do not indeed mean that such methods should be condoned, but the purpose for which they are used may indeed determine their criminality.

The judge seems to have agreed with this interpretation, for he limited the guilt of the accused to those instances in which they collected payments, either without doing any work at all, or without doing all of the work paid for. His notion was that payments made for services which the operators refused could not properly be called "wages," to the payment of which alone the exception gives immunity. That is also the prosecution's position, as we understand it. The question is whether the act applies in case the...