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United States v. Winston

June 23, 1977

UNITED STATES OF AMERICA, APPELLEE,
v.
JERRY WINSTON, BROOME COUNTY AVIATION, INC., COMMUTER AIRLINES, INC., AND THEODORE (TED) BELL, DEFENDANTS-APPELLANTS



Appeal from a judgment convicting appellants of violations of 45 U.S.C. § 152 and 18 U.S.C. § 371 following a jury trial before MacMahon, J., in the United States District Court for the Northern District of New York. Reversed and remanded for a new trial.

Kaufman, Chief Judge, Van Graafeiland, Circuit Judge, and Pollack, District Judge.*fn*

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

Appellants were convicted of violating § 2 of the Railway Labor Act, 45 U.S.C. § 152, which makes it a criminal offense for a railroad or airline to willfully influence or coerce its employees in matters involving unionization or employee representation.*fn1 Because of errors in the District Court's charge to the jury, we reverse and remand for a new trial.

The Facts

Appellant Winston is the sole stockholder of appellant Broome County Aviation, Inc., and his wife is the sole stockholder of appellant Commuter Airlines, Inc. Both corporations are located in Binghamton, New York. Broome provides charter service, sells fuel and does aircraft maintenance. Commuter provides scheduled airline service to several nearby cities. Appellant Bell is the chief pilot for the combined operation, which is operated substantially as a single business entity. The company is relatively small in size, employing approximately two dozen pilots, together with the necessary mechanics and ground staff.

In the Fall of 1974, a representative of the pilots contacted the Airlines and Aero-space Employees Union, Teamsters Local 732, to explore the possibility of organizing a pilots' union. At an organizational meeting held on October 2, 1974, a sufficient number of authorization cards were signed to permit the Teamsters to petition the National Mediation Board for an election. The company was opposed to unionization and so indicated in several general meetings with the pilots at which appellants Winston and Bell spoke. Winston also met individually with a number of the pilots, seeking to gain their support. Despite these efforts, three-quarters of the pilots voted for the union, which was certified as the pilots' representative on December 4, 1974. During the months which preceded and followed the election, seven pilots were discharged - two prior to the election and five subsequent thereto. On July 2, 1975, the indictment herein was filed.

Count One charged all of the defendants with an 18 U.S.C. § 371 conspiracy to violate the Railway Labor Act by threatening reprisal if the pilots organized, by asking the pilots for their ballots and by firing a number of them. Winston and the corporate defendants were charged on seven counts with interfering with the pilots' choice of representative and on seven counts with coercing against union membership. Each of these fourteen counts was based upon the discharge of a pilot. Appellants were convicted on all of these counts.

The Instructions to the Jury

Although Subsection Tenth of 45 U.S.C. § 152 was enacted in 1934, appellants are the first persons who have been tried criminally for violation of its provisions. The District Judge therefore had no helpful precedents to guide him and patterned his charge in the main upon one which would be appropriate in an N.L.R.A. § 8(a)(1) case, 29 U.S.C. § 158(a)(1). Unfortunately, cases decided under § 8(a)(1) do not reach the subject of criminal intent, and it was in this portion of his charge that the District Judge went astray.

Subsection Tenth proscribes "willful" failure to comply with the Act. The District Judge, however, charged the jury that the defendants were not required to know that their conduct violated the Railway Labor Act or any other law. He said that they only needed to be conscious of what they were doing and that their conduct was willful if it was performed knowingly, intentionally, purposefully, or deliberately, wholly or partly for the purpose of thwarting the objects of the law - to prohibit employers from interfering with employees' free exercise of their protected rights to choose a representative, to organize and to bargain collectively with their employer.

The District Judge also instructed the jury that, although the Act does not prohibit an employer from discharging an employee, a discharge motivated wholly or partly by intention to punish the employee or retaliate or discriminate against him for exercising a statutorily protected right is prohibited. He charged that, if an employer knowingly and intentionally discharges an employee partly because of union activities and partly because of misconduct or loss of business, there is nevertheless a violation of the law. He said that, "even if there is otherwise a good and legally sufficient reason or justification for discharging an employee, the employer, nevertheless, violates the law by doing so if an intention to interfere with, influence or coerce an employee in exercising or because he had exercised a protected right, plays any part in the Defendant's motivation." We have concluded that these portions of the charge were also prejudicially erroneous.

Wilfullness Under the Act

The general rule under the common law was that scienter was a necessary element to be proved in every crime. United States v. Balint, 258 U.S. 250, 251, 66 L. Ed. 604, 42 S. Ct. 301 (1922). "Actus non facit reum, nisi mens sit rea"*fn2 is a descriptive quotation which garnished many opinions in the days when such Latin embellishments were the vogue. Although Congress has eliminated the requirement of criminal intent for certain offenses, see United States v. Park, 421 U.S. 658, 668, 44 L. Ed. 2d 489, 95 S. Ct. 1903 (1975), mens rea continues to be "the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500, 95 L. Ed. 1137, 71 S. Ct. 857 (1951). Where an "evil state of mind" is intended to be a prerequisite to ...


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