United States v. DeLaurentis

• Decision Date: 21 January 1974
• Docket Number: No. 516,Docket 73-2330.,516
• Citation: 491 F.2d 208
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alex DeLAURENTIS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

491 F.2d 208 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Alex DeLAURENTIS et al., Defendants-Appellants.

No. 516, Docket 73-2330.

United States Court of Appeals, Second Circuit.

Argued December 6, 1973.

Decided January 21, 1974.

Seymour M. Waldman, New York City (Waldman & Waldman; Louis Waldman and Martin Markson, New York City, on the brief), for defendants-appellants.

Frank D. Allen, Jr., Atty. Dept. of Justice, Washington, D. C. (Henry E. Petersen, J. Stanley Pottinger, Asst. Attys. Gen., Phillip Wilens, Atty., on the brief), for plaintiff-appellee.

Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.^*

FEINBERG, Circuit Judge:

In this extraordinary case, the United States has utilized an 1870 Civil Rights statute to prosecute three officers of a labor union for conspiring to "injure, oppress, threaten and intimidate" members of the union in the free exercise of their right not to participate in a concerted labor activity. The three defendants, Alex DeLaurentis, Hy Juvall and Willie Morales, appeal from their conviction in the United States District Court for the Eastern District of New York, after a jury trial before John F. Dooling, Jr., J.,¹ of violating 18 U.S.C. § 241. Although the conduct of these union officials may have been reprehensible, we do not believe that Congress has made it criminal. Therefore, we reverse the convictions and direct that the indictment be dismissed.

I

The prosecution grows out of a labor dispute in early 1969 between Local 1115, Nursing Home, Hospital, Senior Citizens Hotel Employees Union, and Doctors Hospital in Freeport, Long Island. The three appellants were officers of that union, which represents blue collar workers and nurses aides at private hospitals operated by one Dr. Anton Notey. The issue at Doctors Hospital, which was one of Dr. Notey's facilities, was whether the union should be recognized as bargaining agent for the hospital's licensed practical nurses (LPN's). On April 21, 1969, DeLaurentis, Mrs. Marjorie Grogan (an LPN who had organized co-workers at the hospital) and several other LPN's met with Dr. Notey to tell him that a majority of the LPN's had selected Local 1115 as bargaining representative and to request union recognition on the basis of signed union authorization cards. After Dr. Notey checked the authenticity of the cards, he apparently told DeLaurentis that he would recognize the union. When word of this got out, some of the nurses advised Dr. Notey that they did not wish to be represented by a union that also represented blue collar hospital employees, and if there was to be unionization of LPN's they preferred a "professional" union, the Licensed Practical Nurses Association (LPNA). Two days later, Dr. Notey told DeLaurentis that he would not recognize Local 1115 without an election. In response, DeLaurentis, with the cooperation of Juvall and Morales, organized "sit-ins" at three hospitals (including Doctors) and a nursing home, all facilities of Dr. Notey. The purpose of the sit-ins, which lasted about four days, was to bring pressure on Dr. Notey to agree to the recognition of Local 1115 at Doctors Hospital.

The sit-ins were commenced by directing union members, when they appeared at work, to "meetings" at the hospitals. Under union rules, attendance at "shop meetings" is compulsory. At the "meetings," for which no advance notice was given, members were told of the dispute with Dr. Notey over recognition and that there would be sit-ins in sympathy for the LPN's. There was a conflict in testimony as to whether there was an opportunity to vote for approval of such concerted activity.² There was also a conflict as to whether the defendants compelled individuals to participate in the "meetings" or sit-ins by violence or threats of violence. Government witnesses testified to a few incidents of "violence" or threats; e.g., a nurses aide at Doctors Hospital was shoved back into the meeting room when she attempted to go back to work; another nurses aide was told that "we have our own way of . . . taking care of people." Defense witnesses offered a more innocent version of events occurring at the sit-ins. The controversy was not settled by the jury verdict since the judge charged that neither violence nor a threat of violence was a necessary element of the crime. Instead, the judge instructed that it was enough if the defendants conspired to "overcome the will" of the employees in the sense of inducing them to do what they did not voluntarily want to do. We will assume that proof of the conspiracy as charged was sufficient since our disposition of the case does not depend on resolution of this issue.

The pressure on Dr. Notey was successful. On April 27, 1969, he agreed to recognize Local 1115 as representative of the LPN's at Doctors Hospital, and the sit-ins ended. Two series of events flowed from this unfortunate episode. One, hardly unexpected, was that rival union LPNA filed unfair labor practice charges against Local 1115 and Doctors Hospital. We are told that these were sustained by the National Labor Relations Board³ and eventually the employees selected LPNA over Local 1115 in a close election.⁴ The other aftermath of the sit-ins was much more unusual. In January 1973, appellants were indicted for⁵ — and in May 1973, found guilty by a jury of — violating 18 U.S.C. § 241. After Judge Dooling denied motions for a judgment of acquittal or for a new trial, this appeal followed.

II

The basic question before us is whether 18 U.S.C. § 241 renders criminal the activities of defendants in this case, assuming arguendo that they committed the acts charged. Appellants principally argue that it does not, for two reasons. The first is that section 241 protects the fundamental civil rights of citizens generally, but not those rights "secured to narrow economic groups or classes under federal regulatory statutes."⁶ The second asserted reason why section 241 cannot apply here is that the rights specified in section 7 of the National Labor Relations Act must be vindicated exclusively through the procedures set forth in that Act and may not serve as the basis for a prosecution under section 241. Because we find this second argument determinative, we do not decide the issues raised by the first.⁷

Section 241 provides, in relevant part, as follows:

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

. . .

They shall be fined not more than $10,000 or imprisoned not more than ten years, or both. . . .

Originally enacted in 1870 as part of the post-Civil War legislation to implement the rights of the newly-freed Negroes, the section has been changed only minimally in subsequent codifications. United States v. Williams, 341 U.S. 70, 71 S. Ct. 581, 95 L.Ed. 758 (1951) (Appendix). The Government's position is that the language of the statute plainly covers the activities of appellants here. Appellants conspired to "threaten, or intimidate" various union members in the "exercise" of their right not to join the sit-ins; that right is "secured" to them by the 1947 Taft-Hartley amendments to the National Labor Relations Act, 29 U. S.C. § 157 ("right to refrain from any or all concerted activities. . . ."); ergo, according to the Government, section 241 applies to appellants' activities.

Thus phrased, the argument seems persuasive, even compelling. But further reflection and competing considerations weaken its force. "Conspiracies" to deprive employees of rights under the National Labor Relations Act are not, after all uncommon, whether stemming from union or employer. In the almost four decades since that Act first became law, there have been untold reported violations of employee rights guaranteed by section 7 of the Act. In many of them, two or more supervisory employees are, or could be, found to have violated the Act by illegally discharging or interrogating a union adherent or by refusing to bargain with a union. Can Congress have intended the consequences of such improper, but nevertheless not uncommon acts, to be up to ten years in prison, or a $10,000 fine, or both? The thought does more than give one pause; it brings one to a halt, and to a further, more careful look at the Government's position.

Initially, we note that before this indictment, there has apparently been only one reported case in which prosecution was commenced on the same theory. And in that case — United States v. Bailes, 120 F.Supp. 614 (S.D.W.Va.1954) — the indictment was dismissed on the ground that it did not charge a federal crime. Cf. United States v. Berke Cake Co., 50 F.Supp. 311 (E.D.N.Y.), appeal dismissed, 320 U.S. 807, 64 S.Ct. 368, 89 L. Ed. 487 (1943). Although this decision hardly determines the issue of statutory construction before us, the paucity of prosecutions suggests that the "plain meaning" of section 241 may not have been so plain to everyone. Certainly, the Supreme Court in construing both section 241 and an analogous statute has done far more than look to the language of the statute alone. In United States v. Johnson, 390 U.S. 563, 88 S.Ct. 1231, 20 L.Ed.2d 132 (1968), the question was whether section 241 could be used to prosecute persons who had assaulted blacks exercising their right to equality in public accommodations under the Civil Rights Act of 1964. The Court concluded that the legislative history of the 1964 Act precluded criminal liability for owners of such establishments, but not for "outside hoodlums" like the defendants there. On that basis it reinstated the indictment. Three Justices dissented on the ground that the language and history of the 1964 Act prevented its use as the predicate of any criminal prosecution at all under section 241.⁸ Thus, the entire Court agreed that the language and...