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UNITED STATES v. BERKE CAKE CO.

June 18, 1943

UNITED STATES
v.
BERKE CAKE CO., Inc., et al.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Demurrer to indictment.

These defendants have been indicted for a violation of 18 U.S.C.A. § 51, the material part of which reads as follows:

 "If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, * * * they shall be fined * * *."

 The indictment describes the two corporations named as being engaged in producing and selling baking and confectionery products in interstate commerce; and alleges that the employees of the said corporations were such within the meaning of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.

 The individual defendants are described as follows: That Irving Berke was an officer of both corporations; that Moe Gertner and Charles Urban were supervisory employees thereof, and that Harry Meth, Harris Horowitz, Nathan Erlich, and Joseph Bless were, respectively business agent, president, manager, and financial secretary of Local 51, Bakery and Confectionery Workers International Union of America.

 That the defendants from October 24, 1938, to the date of the filing of this indictment (May 11, 1943) did conspire "to injure, oppress, threaten and intimidate certain citizens of the United States, to wit, (then follow the names of some thirty-two individuals, all of whom were employees of the said corporations) * * *, in the free exercise and enjoyment of, and because the aforesaid employees had exercised certain rights and privileges secured to the said employees and each of them, by Section 16(b) of the Fair Labor Standards Act of 1938 * * *, to wit, the right and privilege of said employees, and each of them, to maintain in a court of competent jurisdiction an action to recover from the company defendants the amount of their unpaid minimum wage and overtime compensation and an additional equal amount as liquidated damages; and which conspiracy was performed and carried out in the manner and means as hereinafter described."

 It is then averred that it was a part of the plan and purpose of the conspiracy that the corporate officers would discharge and threaten to discharge those employees who filed complaints and instituted actions under Section 16(b) of the Fair Labor Standards Act of 1938, and who refused to sign general waivers and releases of said claims and to discontinue any actions brought under the said section.

 That the union officials would coerce and attempt to coerce said employees by making demand upon and otherwise attempting to influence them to sign such waivers and releases, and discontinue any such actions.

 That Bless, as financial secretary, assisted by the other union officials, would refuse to accept partial payment of arrears in union dues from such employees who refused to discontinue "actions brought under Section 16(b)" of the said statute, and who refused to sign general waivers and releases of their claims, while the said officials would continue to accept part payments of arrears in union dues from employees who did not institute such actions or who signed waivers and releases; and that, as to the employees who refused to sign waivers and releases and to discontinue their actions, the said union officials would certify them to the corporate defendants as being delinquent in the payment of union dues, as a basis for discharge, "whereas in truth and in fact as all the defendants well know, said employees would be and were discharged because they refused to sign releases of their claims for unpaid minimum wage * * *, and refused to dismiss actions brought under" the appropriate section of the law.

 That it was part of the conspiracy that the corporate officers and supervisory employees would compel the employees who refused to sign waivers and releases and to discontinue their actions, "to work under unfavorable conditions and would then and there discriminate against such employees in the matter of working conditions * * * with the intent and purpose of coercing said employees into discontinuing their suits and signing waivers and releases of their claims".

 That it was a part of the conspiracy that the union officials would discriminate against said employees who refused to sign waivers and releases and discontinue their actions, by denying to them the benefits to which they were entitled, as members of the said union, "under new union contracts entered into by the said Local 51 and the company defendants".

 If there was indeed such a conspiracy entered into as this indictment alleges, a serious violation of the law was thereby contemplated, and it should be so understood, but that does not prove that the statute relied upon is addressed to such a condition of affairs.

 In the first place, the Fair Labor Standards Act 29 U.S.C.A. § 216, provides adequate penalties of civil and criminal nature for a violation of the law, and it is not easy to understand why appropriate proceedings thereunder have not been instituted, if the law has been offended; or, if these defendants have entered into a conspiracy to that end and ...


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