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September 25, 1961

Vincent J. MOTZELL, Defendant

The opinion of the court was delivered by: MADDEN

This is a criminal matter wherein the charges contained in a two count indictment were tried to the Court without a jury. At the close of the Government's case, defendant, through counsel, moved for judgment of acquittal which motion was held by the Court. The defense thereupon rested its case and renewed its motion. The matter was taken under advisement and briefs, which were ordered to be submitted, have now been received. Further argument has been waived.

The indictment charges violations of Section 186(b) of Title 29 U.S.C.A. in that, in the first count, the defendant being a representative of a labor union and as such represented the employees of such union working for the American Dredging Co., the Company and the employees thereof being engaged in an industry affecting commerce, did wilfully and unlawfully receive from such employer the sum of $ 12,029.86 between July 7, 1955 and September 20, 1956, and that the receipt of said money was not within any of the exceptions enumerated and provided for in Section 186(c) of Title 29 U.S.C.A. The second count makes a similar charge except that the sum of $ 3,682.47 was received from Eastern Engineering Company, Inc. between the dates of February 29, 1956 and October 6, 1956. *fn1"

 The Government contends that the acts of the defendant are forbidden by this language of Section 186(b):

 '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.'

 It is the further contention of the Government that the acts of defendant do not come within the exceptions to the proscribed conduct in Section 186(c), which provides:

 'The provisions of this section shall not be applicable (1) with respect to any money or other thing of value payable by an employer to any representative who is an employee or former employee of such employer, as compensation for, or by reason of, his services as an employee of such employer * * *.'

 The defendant disputes his violation of the statute upon two principal grounds, first, that he was an employee of American Dredging Company, hereinafter called 'American,' and Eastern Engineering Co., Inc., hereinafter called 'Eastern,' during the times alleged in the indictment and is, therefore, exempt under the terms of Section 186(c)(1), supra, and secondly, that his actions were not wilful in violation of Section 186(d) set forth as follows:

 'Any person who willfully violates any of the provisions of this section (186) shall, upon conviction thereof, be guilty of a misdemeanor and be subject to a fine of not more than $ 10,000 or to imprisonment for not more than one year, or both.'

 There is no dispute of the important facts, as the Court sees them, and they are hereinafter stated as briefly as possible:

 In 1955 there was a labor dispute going on between Local 825-D of the International Union of Operating Engineers, hereinafter referred to as the 'Union,' and a number of dredging companies. Negotiations were going on between the parties and actually were not concluded until September, 1956, but final terms were made effective as of July 1, 1955, by formal agreement. In July of 1955, the officers of the Union, as far as it pertains to this case, were Joseph Delaney, President of the International union body, Stephen Leslie, the business agent of Local 825-D (the Union involved here) and the defendant, Vincent Motzell, assistant business agent. There were a number of other assistant business agents with duties somewhat similar to Motzell's. The dredging companies were in the main represented by Andre V. Cherbonnier, Esquire, an attorney in New York, who also acted as Labor Manager for a number of these companies. During June, July and August of 1955, the negotiators also called in the Federal Mediation and Conciliation Service. While these negotiations were going on but not completed Cherbonnier and Leslie agreed that a representative of the Union should be employed by American with a rank of Master Mechanic and paid accordingly. Such union representative was to have two main duties, first, to obtain, when requested by the Company, the personnel for employment for work on the barge (if he failed to obtain competent personnel within 72 hours the Company had the right to hire from other sources), and, second, to discuss with the Company's designee any and all grievances or disputes arising under the provisions of the agreement. The provisions of this agreement were ultimately made a part of the formal contract of September, 1956, and in particular paragraph 25 thereof. *fn2"

 It is quite evident from the testimony that Motzell while a representative of the Union was not the prime or even important personage in the negotiations. These were Cherbonnier, Delaney and Leslie. Motzell was present on a great many or majority of the meetings but played little or no part therein. Cherbonnier, during his negotiations, requested or demanded that 'The Master Mechanic is not to be employed by more than one Company at the same time and is to be paid a fixed agreed upon weekly rate, such rate to be agreed upon between the Union and each Company.' See the letter of August 31, 1955, addressed to the various companies, including American, by Cherbonnier. This provision was not incorporated in the formal agreement.

 Motzell in 1955 received a total in weekly checks of $ 10,866.40 and in 1956, $ 8,888.20 from American.

 In February, 1956, Eastern Engineering Company, Inc. was formed, with offices in Atlantic City, New Jersey; Mr. Abraham Nathan was Vice President and Mr. Andrew B. Reid was President. They visited Leslie's home in North Jersey regarding union representation and securing labor, and the defendant Motzell was present. It was agreed at this meeting that Motzell was to be engaged as a Hiring Engineer by Eastern and his compensation would be $ 2.70 per hour on the basis of a 52 hour week. Motzell obtained the employees as needed by Eastern and represented the employees if there were any grievances. Motzell's weekly checks were sent to a Camden, New Jersey, Post Office Box.

 Witnesses employed by American testified that they knew Motzell was working for Eastern, and witnesses employed by Eastern testified that they knew that Motzell was working for American. Cherbonnier, Reid and Nathan all testified, together with others, that Motzell performed services for American and Eastern, respectively, classifying them from 'plain' to 'very valuable.'

 The records of Eastern show that Motzell received from Eastern from March 1, 1956 to September 29, 1956, a total of $ 4,200.

 In addition to the foregoing Motzell received from the Union the sum of $ 40 weekly. This was a sum like all other assistant business agents received to defray their travel expenses in their various areas; Motzell received this sum as expenses for ...

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