Ventimiglia v. United States

• Decision Date: 11 March 1957
• Docket Number: No. 7319.,7319.
• Citation: 242 F.2d 620
• Parties: Frank Paul VENTIMIGLIA, James Harold Parran, and Weather-Mastic, Inc., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

242 F.2d 620 (1957)

Frank Paul VENTIMIGLIA, James Harold Parran, and Weather-Mastic, Inc., Appellants, v. UNITED STATES of America, Appellee.

No. 7319.

United States Court of Appeals Fourth Circuit.

Argued January 7, 1957.

Decided March 11, 1957.

Robert F. Skutch, Jr., Albert H. Blum, and Mark D. Coplin, Baltimore, Md. (Weinberg & Green, Baltimore, Md., on brief), for appellants.

Walter E. Black, Jr., U. S. Atty., Baltimore, Md., for appellee.

Before PARKER, Chief Judge, and SOPER and SOBELOFF, Circuit Judges.

SOBELOFF, Circuit Judge.

The Taft-Hartley Act forbids the payment of money by an employer subject to its provisions to "any representative of any of his employees." 29 U.S.C.A. § 186(a). The defendants were indicted for three substantive violations of this law and for conspiracy to violate it. At a trial before the District Judge, sitting without a jury, the defendants were acquitted of the substantive offenses, but convicted of the conspiracy. The sufficiency of the evidence to sustain the conviction is the question raised by this appeal.

Weather-Mastic, Inc., is a non-unionized contractor engaged in the insulating and weather-proofing business. Parran is its general manager and Ventimiglia its labor relations adviser. In the prevailing industry practice, workers are required to have in their possession some evidence of union membership, if in fact affiliated with a union, or "working cards," which the union customarily issues to a limited number of non-union men seeking work on union jobs. Having been accepted as a sub-contractor for a job in Alexandria on which Stone and Webster, a unionized company, was general contractor, Weather-Mastic faced the need of obtaining working cards for its men. Joseph Martin, business agent of Local No. 80 of United Slate, Tile and Composition Roofers, Damp and Water Proof Workers, complained to Weather-Mastic that its workmen were carrying "working cards" issued, not by him, but by Ventimiglia, who was then in the service of Weather-Mastic, Inc., but had earlier been the business agent of the union. After discussion, Martin was persuaded by the defendants to issue working cards to Weather-Mastic's employees, for which the defendants agreed to pay Martin One Hundred Dollars each month.

Martin's duties as business agent for Local No. 80 are said to be of the usual type: negotiating wage contracts and working conditions, representing the union members and acting as peacemaker between employers and union members in respect to disputes or grievances. Martin never represented any of Weather-Mastic's employees in any of these respects. He did issue working cards signed by him, which he delivered to Ventimiglia. For this he received several monthly payments from the defendants.

An additional duty of union business agents is to check on the union credentials of men engaged on a union job who are not members of his union. The evidence is that if another business agent was skeptical of an employee's working card, the usual procedure would be to make inquiry of the agent who had issued the card, and if he verified its validity, that ordinarily would be enough to satisfy the inquirer. While Weather-Mastic's men were never asked to show their cards, except by the Federal Bureau of Investigation (to whom Martin had reported his agreement with the defendants), the significance sought to be attached to this fact is that Martin, it is said, was prepared to stand behind and vouch for Weather-Mastic's employees if questions as to their status should ever arise.

It is, of course, beyond dispute that a punishable conspiracy may exist independent of the actual commission of the substantive offense which was the object of the conspiracy. This need not be labored. However, there can be no conviction for conspiracy to commit an offense against the United States if the act that the alleged conspirators agree to do has not been made unlawful, and is not planned to be accomplished in an unlawful manner.

According to the Court's findings, the testimony affirmatively established that the corporate defendant's employees were not at any time members of Martin's union, and that there is no evidence that they authorized or subsequently ratified Martin's representing them; and the Court added — correctly, we think — that there is here no representation by operation of law. If Martin was no representative of the employees, Section 186(a) did not apply to him. The Court concluded, as we think was required in these circumstances, that the section was not violated, and he entered the not guilty verdict as to the three substantive counts.

In considering the conspiracy count, however, the Court predicated a verdict of guilty upon the theory that while the defendants did not desire Martin to represent the employees in all respects, they did intend to deal with him as their employees' representative in issuing cards evidencing the union's willingness to permit them to work on union jobs. The opinion says: 145 F.Supp. 43 "He Martin was to furnish the necessary indicia of union membership, and if questions arose, handle the matter so that there would be no interruption to work. * * * He was not to organize them, or to negotiate on their behalf with the employer as to wages. But there can be no doubt that the defendants intended Martin to do acts which a representative of employees would be expected to do — insure the availability and continuity of work. Likewise, Martin could have become the formal representative of the employees had they initiated the issuance of cards, or accepted or used them knowing the reasons for which, and the circumstances under which the cards were issued."

Thereupon, the Court concluded that, for a period at least, defendants intended to deal with and dealt with Martin as a representative of their employees. He added that "the defendants cannot avoid the natural consequences of their conduct by a simple denial that Martin was such a representative when the evidence is that they intended him to be and dealt with him in that capacity; nor does the fact that they did not want him to be (and indeed forbade him to be) the employees' representative in certain respects, prevent him from being such representative in the limited field in which he was to, and did, act."

In analyzing the evidence in connection with the conspiracy count, the District Judge, we think fell into error. The testimony, it seems to us, does not lend itself to the treatment given it. Plainly enough, the defendants did not deal with Martin as their employees' representative, and never intended to deal with him as such. They did not want him to approach their employees or organize them, or represent them, and he did not do so. As the Court declared in a subsidiary finding of fact, the defendants induced Martin not to organize or represent the employees. The cards he issued were not "indicia of union membership;" on the contrary, they were working cards such as are customarily issued to non-members, to workers not represented by the union. Employees represented by the union or by its business agent require no such cards. The purpose of the cards is to sanction work by non-union men, who are unrepresented. So, far from treating them as union members and thus under representation by Martin, he treated them as the only class of workers who could carry such cards, namely, persons not in the union or represented by it or by its officers.

It is not suggested that if Martin had in fact been the employees' representative, the defendants could have escaped the penalties of Section 186(a) or of the conspiracy statute, on the ground that he acted faithlessly to the employees and for the advantage of the employer. That is not the defense. The defense, which the undisputed testimony establishes, is that Martin did not represent the employees, was not asked by the men to represent them in anything, did not take them into his union, did not attempt to take them in, or pretend to anyone that he had taken them in, or that he had become their representative in any sense. He avoided all contact with them and did not assume to represent them. At the employer's instance, he issued cards saying that certain employees who were not union men might work without objection from the union — a practice well established in respect to workers not represented by the union, and only as to such. The cards were not "indicia of union membership"; they were the opposite of this.

We need not on this record consider whether falsely indicating that the employees were members, would have made the statute applicable. The fact that the toleration of such non-union men on the job may have been agreed to by Martin, with the defendants, for motives less than upright and sincere to the union he represented, would not convert him into a representative of the defendants' employees who were not in the union and never sought to be, and who never had any relation whatever to Martin as their representative in any sense. The parties were under no misapprehension whatever as to Martin's status. He was not the representative of Weather-Mastic's employees, and no one concerned thought otherwise.

A criminal statute is not to be stretched to cases not covered, merely because it may seem to a court that Congress would have done well to cover them. Even when the court may feel that if the omission had been called to the attention of Congress, it might have written the statute differently to cover the omitted case, the Court is not empowered to exercise the task of revision. The section of the law under consideration did not in broad terms make it a crime for an employer to pay money to a representative of a union for acting disloyally to his union, or for not acting diligently to further the union's organizing program, or for refraining from becoming the employee's representative, or for otherwise influencing the union official's conduct. Section 186(a) is not ...