Before BIGGS, Chief Judge, HASTIE and FORMAN, Circuit Judges.
HASTIE, C. J.: Appellant Baker, an organizer for the International Brotherhood of Teamsters, has been convicted of unlawfully receiving money from an employer in violation of Section 302(b) of the Labor Management Relations Act of 1947, 61 Stat. 157, 29 U.S.C., 1952 ed., § 186(b). The alleged offenses occurred in 1957 and 1958, before the 1959 amendment of Section 302 (b), 73 Stat. 537, 29 U.S.C., Supp. I, 1959, § 186(b).
With exceptions not relevant here, the statute makes it 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 indictment charged that on three occasions Baker, acting as a representative of employees of Exhibitors Service Co., unlawfully accepted money from the president of the corporate employer. Each of the three payments was the subject of a separate count of the indictment. Baker was convicted on all three counts. This appeal followed.
Appellant's first point is that, on the evidence, the jury could not reasonably have concluded that the payments were anything other than loans, which he says were not prohibited by the statute. The trial judge clearly instructed the jury that acceptance of money as a loan would not violate the Act. Thus, the verdict expresses the jury's conclusion that these payments were not loans. We shall demonstrate this was a permissible conclusion on the evidence. It is, therefore, unnecessary to decide whether the court's interpretation of the statute as not prohibiting loans was unduly favorable to the defendant.*fn1
The evidence shows that on December 18, 1957, the employees of Exhibitors Service Co., who were members of Teamsters Local 211, went on strike. Later that month appellant came to Pittsburgh where Exhibitors maintained its headquarters, visited George Callahan, the President of Exhibitors, and undertook to arrange a meeting between the parties as a first step toward settling the strike. At the conclusion of their first discussion of this labor dispute, Callahan gave Baker one hundred dollars. In the court below Callahan testified: "I gave him a hundred dollars, and I said, 'this will cover your expenses for such a meeting or meetings', and - that's it". It is not contended that anything to the contrary was said on that occasion, or that it was then made manifest that either party viewed the transaction as a loan. Several days later the two men met again and Callahan gave the appellant seventy-five dollars saying:
"This will see you back to Detroit".
During January the men met once more and discussed Callahan's labor problems. At that time, again according to Callahan's testimony, Baker complained of financial difficulties, but did not ask for money. However, since the two had now become friendly, Callahan volunteered to let Baker have three hundred dollars. Callahan quoted the appellant as saying:
"I will accept it on a loan basis."
It is conceded, however, that no evidence of indebtedness was given and no repayment has been made.
In August, 1958, Callahan appeared as a witness before a committee of the United States Senate investigating labor management relations. On that occasion he was questioned about various transactions, including his dealings with the appellant. It was not until after these hearings that Callahan wrote to Baker requesting for the first time that Baker repay the sums which he had received from Callahan.
We think a jury could reasonably have been convinced on this evidence that the designation of the payments as loans represented a reappraisal of the transactions by the parties after the Senate investigation had given them publicity and had brought their propriety into question. The fact that Callahan admitted tendering the first two payments to compensate appellant for the time and expense involved in his helpful visit to Pittsburgh greatly strengthens the logical inference that the loan theory was an afterthought. We are satisfied that proof was adequate on this aspect of the case.
An entirely different question is raised by appellant's second contention. It is argued that during the trial the government introduced and placed principal reliance upon incompetent evidence in its effort to prove that Baker was acting as a "representative" of the employees of Exhibitors when he received money from Callahan. The strongest evidence of appellant's representative status was his own testimony at the already mentioned Senate Committee hearing, which was introduced in evidence over appellant's objection in the court below. Before the Senate Committee appellant had testified that as a union official he worked under the direction of "Mr. Harold Gibbons and Mr. James R. Hoffa". Mr. Hoffa, who testified in the present case, was identified as an International Vice President of the Teamsters and a member of the International Executive Committee. Appellant also testified before the Senate Committee with reference to the Exhibitors' strike that "I was sent in there to try and arbitrate and get the contract signed and settled". He added:
"I went in there to see what I could do in trying to get the people back to work. . . . I undertook to get in there and see that the strike would be settled".
He also testified that he "went to the local union office and sat down and discussed the strike that was in progress, and we wanted ...