Before MARIS, GOODRICH and HASTIE, Circuit Judges.
GOODRICH, C.J.: This is an appeal from conviction of the defendants under 302(b) of the Taft-Hartley Act. 61 Stat. 157 (1947), 29 U.S.C.A. § 186(b) (1956).*fn1 The section provides:
"It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value."
The defendants were business agents and members of the Executive Board of Local 1058, International Hod Carriers, Building and Common Laborers Union.
The employers concerned were doing business as Black Top Paving Company. This company had a contract with the Pennsylvania Department of Highways to widen and resurface Pennsylvania Route 71. There was evidence from which the jury could find that after several interviews Wiggins, one of the partners, paid $200.00 to Martire and Pecora to buy labor peace. Following their conviction they raised on appeal three points which will be considered in order.*fn2
I. The defendants say that Black Top had no employees at the time the money was paid to them. The alleged payment was made on December 19, 1951, but on December 13, 1951, work stopped on this highway improvement because the weather was too bad to continue. There was testimony from Mr. Wiggins, however, that the workmen kept in touch with either him or the foreman in the weeks following. The weather continued unfavorable and finally on February 13, 1952 the work was closed down for the winter and opened up again in March of that year. Several of the employees who had joined Local 1058 began work again in the spring; others did not. These laborers were employed from day to day and were free to quit work if they wished to do so at any time. But there was a provision in the contract between Black Top and the Laborers' District Council that men who left Black Top's employ during the duration of the contract could not take a job with another heavy construction on highway contractor without the consent of Black Top and the other contractor.*fn3 To this extent the employees were not completely free to accept employment elsewhere although they could quit Black Top if they pleased.
The point made by the defendants, that at the time of the taking of the money Black Top had no employees, was before the court during the trial. The defendants asked for instruction on this point:
"If you find that the common laborers left the job on December 13, 1951, that no such laborers returned to work till March or April of 1952, and that they were not subject to call, then the Government has not proved beyond a reasonable doubt that these men were employees of Black Top Paving Company on December 19, 1951, and you must find the defendants not guilty."
The court did not give this instruction but instead charged the jury in these words:
"In this connection it is not necessary that the employees of Black Top Paving Company were actually working at the time of the alleged offense, it being sufficient even though they were laid off at the time that their employment was not permanently terminated."
We think that instruction the court gave was adequate. As the appellants' argument develops it appears that they concede that if the work was closed down because of bad weather for a day or so or for a holiday or something of that sort, the employees would still remain as employees. There are plenty of decisions which show that because a man is not at work at a particular day he does not necessarily lose his right as an employee. See e. g., North Whittier Heights Citrus Ass'n v. N.L.R.B ., 109 F.2d 76, 82 (1940); N.L.R.B. v. Waterman Steamship Corp ., 309 U.S. 206, 213-19 (1940).
We think the phrasing of the request on behalf of the defendants was somewhat misleading. The laborers who could not work on December 14 because the weather was bad were subject to call in the sense that they kept in touch with the employer to see whether work could be resumed. But if they did not respond to a summons to work, they did not commit a breach of contract for they were free to quit when they pleased. The requested instruction would tend to confuse the jury.
On the other hand, what the trial judge said was not misleading. The appellants complain of the use of the word "permanently" and make earnest arguments on the distinction between "permanently" and "temporarily." But an instruction to a jury need not lead us to dictionary definitions to decide whether the problem is in understandable form. What the judge told the jury read in connection with the remainder of his charge left them with a pretty clear picture of what they had to decide. That is the test and that was satisfactorily met.
II. The second point appellants make is that this Union did not represent a majority of the Black Top employees and, therefore, could not ...