United Union of Roofers, Waterproofers and Allied Workers, Union No. 33 v. Meese

• Decision Date: 29 June 1987
• Docket Number: No. 86-1945,86-1945
• Parties: 125 L.R.R.M. (BNA) 3087, 107 Lab.Cas. P 10,002 UNITED UNION OF ROOFERS, WATERPROOFERS AND ALLIED WORKERS, UNION NO. 33, Plaintiffs, Appellants, v. Edwin MEESE, Attorney General of the United States of America, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 652

823 F.2d 652

125 L.R.R.M. (BNA) 3087, 107 Lab.Cas. P 10,002

UNITED UNION OF ROOFERS, WATERPROOFERS AND ALLIED WORKERS, UNION NO. 33, Plaintiffs, Appellants, v. Edwin MEESE, Attorney General of the United States of

America, et al., Defendants, Appellees.

No. 86-1945.

United States Court of Appeals, First Circuit.

Argued Feb. 3, 1987.

Decided June 29, 1987.

Michael A. Feinberg with whom Aaron D. Krakow and Feinberg & Feld, P.C., were on brief for plaintiffs, appellants.

Laurence Gold, David Silberman, Laurence J. Cohen, Robert M. Weinberg, Mark D. Schneider, on brief for American Federation of Labor and Congress of Indus. Organizations, The Building and Const. Trades Dept., AFL-CIO, The Massachusetts AFL-CIO, and the Massachusetts State Building and Const. Trades Council, amici curiae.

Elisa B. Vela, Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Robert S. Mueller, III, U.S. Atty., John F. Cordes, and Gerald Toner, U.S. Dept. of Justice, were on brief for defendants, appellees.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

BREYER, Circuit Judge.

A federal statute disqualifies from holding union office persons convicted of any one of a set of specifically listed crimes. The list includes such serious crimes as murder, bribery, embezzlement, arson, and (relevant here) "assault which inflicts grievous bodily injury." 29 U.S.C. Sec. 504 (Supp. II 1984). In 1983, Harold Lynch, the business manager of the Roofers, Waterproofers, and Allied Workers Local Union No. 33, attended a Union Executive Board meeting considering various charges and countercharges leveled between Lynch and two other union members. During the meeting, Lynch threatened the other two members and punched one of them in the face, breaking his nose. The federal government subsequently indicted and convicted Lynch under a labor statute that forbids "the use of force or violence, or threat of the use of force or violence" to intimidate union members in the exercise of their rights. 29 U.S.C. Sec. 530 (1982); see United States v. Lynch, 792 F.2d 269 (1st Cir.1986). The federal criminal code classifies this crime (which carries a maximum prison term of one year) as a "misdemeanor." 18 U.S.C. Sec. 1 (1982).

The Department of Justice subsequently told the Union that, in its view, Lynch's conviction under the "intimidation" statute was "equivalent to" a conviction for an "assault which inflicts grievous bodily injury," and that Lynch's conviction therefore came within the scope of the "disqualification" statute. The Union disagreed. Because it wished to keep Lynch as an officer, the Union brought this action seeking a declaration that the "disqualification" statute does not apply. The district court decided in favor of the government. We believe that the district court is correct.

I

In order to understand the legal issues in this case, one must keep in mind the relevant language of two different labor statutes. The first of these, the "disqualification" statute, says:

(a) No person who ... has been convicted of ... robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, or a violation of [Title II or III of the Labor-Management Reporting and Disclosure Act], any felony involving abuse or misuse of such person's position or employment in a labor organization or employee benefit plan to seek or obtain an illegal gain at the expense of the members of the labor organization or the beneficiaries of the employee benefit plan, or conspiracy to commit any such crimes or attempt to commit any such crimes, or a crime in which any of the foregoing crimes is an element, shall serve or be permitted to serve--

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(2) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, employee, or representative in any capacity of any labor organization [for thirteen years or until one of several specified conditions occurs].

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(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

29 U.S.C. Sec. 504.

The "intimidation" statute which Lynch violated is entitled "Deprivation of Rights by Violence." It says:

It shall be unlawful for any person through the use of force or violence, or threat of the use of force or violence, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercise of any right to which he is entitled understand the provisions of this chapter. Any person who willfully violates this section shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

29 U.S.C. Sec. 530 (we have emphasized the directly relevant language in both statutes). The basic question in this case is whether a person convicted under the second statute can be disqualified under the first.

It is important to understand that the nature of Lynch's actual conduct is not a significant subject of dispute. The conduct in question could in principle amount to an "assault which inflicts grievous bodily injury." A punch in the face that breaks the victim's nose, requiring hospitalization and surgery, is not like an ordinary punch thrown in anger, say, on a picket line. Rather, the punch amounted to an "assault" and a "battery" which led to an injury serious enough to count as "grievous" under various cases that seek to distinguish more serious, from less serious, bodily harm. Compare People v. Finn, 87 N.Y.S.2d 798, 275 A.D. 65 (1949) (extensive facial bruises and swelling may be "grievous bodily harm") and State v. Linton, 36 Wash.2d 67, 216 P.2d 761, 778 (1950) ("grievous bodily harm" includes "injury calculated to interfere with health or comfort" and "need not be ... injury of a permanent character") with State v. Sanders, 223 Kan. 550, 575 P.2d 533, 535 (1978) (great bodily harm "does not include mere bruises, which are likely to be sustained in simple battery") and State v. Miles, 77 Wash.2d 593, 464 P.2d 723, 727-28 (1970) (cut lip is not "grievous bodily harm"); cf. Model Penal Code Sec. 210.0(3) (1980) (defining "serious bodily injury" as including "protracted ... impairment of the function of any bodily member or organ"). The Union has not disputed this point; thus, if the government had initially convicted Lynch under an "aggravated assault" statute (one which said, for example, that "it is a felony to commit an assault which inflicts serious bodily injury"), the Union apparently would concede that the disqualification statute applies. The legal issues in this case arise because the government did not convict Lynch of violating an "aggravated assault" statute. Rather, it convicted Lynch of violating an "intimidation" statute. And that fact, says the Union, makes all the difference.

The Union points to three specific features of the "intimidation" statute that it says make a significant legal difference. First, the language of the "intimidation" statute does not refer directly to aggravated assault. Second, the "intimidation" crime is a misdemeanor, not a felony. Third, the government could have convicted Lynch of intimidating through "force or violence" without proving that the victim's injury was serious. The Union believes each of these differences sufficient to take Lynch's conviction out of the "disqualification" statute's language, "assault which inflicts grievous bodily injury," and hence outside the scope of the disqualification statute. We shall consider each of these arguments in turn.

II

First, does it make a critical difference that the "intimidation" statute under which Lynch was convicted aims not at "assault which inflicts grievous bodily injury," but rather (as its title says) at "deprivation of rights by violence"?

We do not think that this difference is significant. For one thing, the simple fact that the "intimidation" statute does not use the words "assault which inflicts grievous bodily injury" or their direct equivalent cannot, in and of itself, make a difference, for Congress could not have meant to include on its "disqualification" list only convictions under statutes that use the list's exact words. Congress wanted to disqualify from union office persons convicted of "serious" crimes, see 105 Cong.Rec. 6410 (1959) (statement of Sen. Ervin); id. at 6554 (statement of Sen. McClellan); S.Rep. No. 187, 86th Cong., 1st Sess., reprinted in 1959 U.S.Code Cong. & Admin.News 2318, 2329; it intended to create "strong barriers against the control of unions by unreformed convicted thieves, racketeers, and thugs," 105 Cong.Rec. at 7021 (statement of Sen. Kennedy); see also id. at A6573 (statement of Rep. Brademas). To interpret the disqualification list, and in particular the common law crimes mentioned there, other than as a list of generic descriptions would undercut this basic purpose, for, as a comparison of a few state and federal "bribery" provisions illustrates, statutes often use different language to forbid different forms of the same type of conduct. See, e.g., 18 U.S.C. Sec. 201 (1982) (influencing public official or witness); 18 U.S.C. Sec. 212 (1982) (gift to bank examiner); 29 U.S.C. Sec. 186(a) (1982) (illegal transaction with labor representative); Mass.Gen.Laws ch. 268, Sec. 13B (1984) (influencing witness); N.Y.Penal Law Sec. 215.00 (McKinney 1975) (similar). Thus, the federal courts have uniformly held that the list of common law crimes includes convictions under statutes that substantially cover the conduct listed in the disqualification statute, regardless of the precise statutory language. E.g., Illario v. Frawley, 426 F.Supp. 1132 (D.N.J.1977) (holding conviction under New...