- Introduction
Section 186(a) proscribes bribery, graft, and conflict-of-interest
payments of money and other prohibited things of value to representatives of
employees, labor union officials, and labor organizations by employers, and
persons acting in the interest of employers, whose labor-management
relations are
governed by the Labor Management Relations Act (29 U.S.C. Sec. 141,
et
seq.).[FN1] The request or acceptance by any person of payments
described
in the statue is also prohibited. 29 U.S.C. Sec. 186(b)(1).[FN2] Federal
courts
have authority to enjoin violations of the statute in actions by private
parties
or the United States. 29 U.S.C. Sec. 186(e).[FN3]
FN1. Undocumented aliens who are employed within the United States are
subject to the LMRA provided that their occupations are not otherwise
excluded
from coverage. Sure Tan, Inc. v. NLRB, 467 U.S. 883, 891-94 (1984).
The
statute does not apply to payments affecting the labor-management relations
of
agricultural employees, domestic laborers, governmental workers, or
employees in
the railway and airline industry. See 29 U.S.C. Sec. 152(2) and (3).
Unlawful payments by railway and airline carriers to labor representatives
of
their employees are punished by the Railway Labor Act (45 U.S.C. Sec. 152).
FN2. The specific prohibition of the solicitation or acceptance of things
of
value by labor unions or their agents from motor vehicle operators in
connection
with the unloading of cargo is not considered here. See 29 U.S.C.
Sec.
186(b)(2).
FN3. There is no record of the United States having sought civil injunctive
relief against prohibited payments since the statute's enactment in 1947.
Civil
litigation under the statute has been pursued by private litigants and
parties
to collective bargaining.
- The maximum criminal penalty is imprisonment for five (5) years and
a
fine for each violation occurring after October 12, 1984, in which the
amount of
money or thing of value involved in the prohibited transaction exceeds
$1,000.
For prohibited transactions of $1,000 and below the maximum penalty is
imprisonment for one (1) year and a fine. See 29 U.S.C. Sec. 186(d),
as
amended (1984). Violations of the statute which occurred before October 12,
1984, are subject to the misdemeanor penalty without regard to the amount of
value involved in the transaction. Felony or misdemeanor violations may be
prosecuted as racketeering acts under the Racketeer Influenced and Corrupt
Organizations (RICO) statute (18 U.S.C. Sec. 1961, et seq.).
- Elements of Proof
- Prohibited Payments to Representatives of Employees or
Labor Unions or Labor Union Officials with Potential Representative
Relationships
with Employees; 29 U.S.C. Sec. 186(a)(1) or (a)(2), (b)(1), and (d)(1) or
(d)(2).
- In order to establish a violation of the statute pertaining to
prohibited
payments to representatives of employees or labor union officials, the
government
must prove the following elements:
- PAYOR: the source of the prohibited payment was a statutory
employer,[FN4] including an agent of an employer; an association of
employers;
a person who acted as a labor relations expert, advisor, or consultant to an
employer; or a person who acted in the interest of an employer.
FN4. 29 U.S.C. Sec. 152(2) excludes employers which are governments,
governmental corporations, and railroads, and airlines whose employees are
subject to the Railway Labor Act (45 U.S.C. 152).
- TRANSACTION: the payor paid, lent, delivered, or agreed to pay,
lend
or deliver, any money or other thing of value (other than 9 types of
financial
transactions excepted in the statute) to a recipient;
OR ALTERNATIVELY,
ANY PERSON requested, demanded, received, accepted, or agreed to receive or
accept, a payment, loan, or delivery of money or other thing of value (other
than
9 types of financial transactions excepted in the statute) to a recipient.
- RECIPIENT: the actual or intended recipient was an
- a representative (individual or organization) of any of the
employees of the employer described in element #1 [29 U.S.C. Sec.
186(a)(1)]
or
- an officer or employee of a labor organization[FN5] which represented,
sought to represent, or would have admitted to membership any of the
employees
of the employer described in element #1 [29 U.S.C. Sec. 186(a)(2)]
or
FN5. 29 U.S.C. Sec. 152(5).
- a labor organization which represented, sought to represent, or would
have
admitted to membership any of the employees of the employer described in
element
#1 [29 U.S.C. Sec. 186(a)(2)].
- JURISDICTION: the employer's employees[FN6] were employed in an
industry affecting interstate or foreign commerce;[FN7]
FN6. 29 U.S.C. Sec. 152(3) excludes workers employed as agricultural
laborers, supervisors, independent contractors and in domestic service.
FN7. 29 U.S.C. 152(6) and (7).
- SCIENTER: a participant (or aider and abettor) of the
transaction who is charged as a criminal defendant acted willfully
with
knowledge of the transaction without proof of any corrupt purpose or
specific
intent to violate the law [29 U.S.C. Sec. 186(d)(2)][FN8]
FN8. See United States v. Phillips, 19 F.3d 1565 (11th
Cir.
1994), cert. denied sub. nom. USX Corp. v. United States, 115 S.Ct.
1312
(1995), and cases cited in that decision.
NB: unless the transaction involved the following special circumstances
described at 29 U.S.C. Sec. 186(d)(1) which require that the participant
have
acted
- willfully with knowledge of the transaction,
and
- with intent "to benefit himself or to benefit other persons he knows
are
not permitted to receive a payment, loan, money, or other thing of value
under
subsections (186)(c)(4) through (c)(9)" where the transactions involve
- the improper withholding and payment by employers of employees'
membership dues or equivalent fees to a labor organization contrary
to
29 U.S.C. Sec. 186(c)(4) below;
- the improper payment by employers of contributions to employee
pension or
welfare (health) benefit plan trusts on behalf of employees contrary to
29
U.S.C. Sec. 186(c)(5)-(8) below; or
- the improper funding of labor-management cooperation committees
contrary to 29 U.S.C. Sec. 186(c)(9) below.
- In the special transactions described in 29 U.S.C. Sec. 186(d)(1)
occurring after October 12, 1984, in which employer remittance of membership
dues, employee benefit contributions, and labor-management cooperation
funding
is prohibited because the parties have failed to comply with structural or
procedural requirements of the statute, criminal prosecution requires a
higher
standard of scienter than a "willful" violation and knowledge of the
operative
facts of the transaction. In such prosecutions, a corrupt purpose
underlying the
transaction must be demonstrated.[FN9]
FN9. See United States v. Papia, 910 F.2d 1357 (7th Cir.
1990), where an employer's payment of bogus dues to the union on behalf of
some
employees who never knew they were union members (in order to evade paying
union-scale wages and benefits for all employees in the bargaining unit) was
upheld as a basis for conviction under the higher scienter requirements for
dues
payments. Compare United States v. Gruttadauro, 818 F.2d 1323
(7th
Cir. 1987), where in a similar pre-1984 bogus dues case, but without the
post-1984 higher scienter, a employer paid monies to the union for bogus
membership cards which could be displayed to other unions' organizers in an
effort to avoid any union organization.
- Requiring the higher scienter for criminal prosecution of such
transactions
is a safeguard that inadvertent violations of the statute involving
deficient
dues checkoffs, payments to improperly structured benefit trusts, and the
like
will not be subject to criminal prosecution. Absent proof of the higher
scienter
in these special transactions, the prohibited payments remain subject to the
civil injunctive provisions of the statute at 29 U.S.C. Sec. 186(e).
- Bribery Payments to Individual Union Officials With or Without
Representative Relationships with Employees;
- 29 U.S.C. Sec. 186(a)(4), (b)(1), and (d)(2).
- In order to establish a violation of statute pertaining to the bribery
of
labor union officials, the government must prove the following elements:
- PAYOR: see element #1 above;
- TRANSACTION: see element #2 above;
- INDIVIDUAL RECIPIENT: the actual or intended recipient was an
officer or employee of a labor organization;
- JURISDICTION: the recipient's labor organization was engaged in
an
industry affecting interstate or foreign commerce;[FN10]
FN10. United States v. Burge, 990 F.2d 244 (6th Cir. 1992),
upholds
the bribery conviction of a union official who accepted sham consulting fees
in
return for influence with a labor organization which would not admit the
paying
employer's employees to membership. This case holds that a union official
can
be bribed in violation of 29 U.S.C. 186(a)(4) as "an officer or employee" of
his
union without being bribed as a "representative of employees."
- SCIENTER: a participant (or aider and abettor) of the
transaction
who is charged as a criminal defendant acted
- willfully with knowledge of the transaction
[29 U.S.C. Sec. 186(d)(2)], and
- with intent to influence[FN11] the individual recipient in respect to
any of
his/her actions, decisions, or duties either as a representative of
employees
OR as an officer or employee of his/her labor organization[FN12]
[29
U.S.C. Sec. 186(a)(4)];
FN11. Although bribery payments in violation of 29 U.S.C. Sec.
186(a)(4) and
(b)(1) carry no additional statutory penalty than gratuities and
conflict-of-interest payments prohibited by the statute, the Federal
sentencing
guidelines impose a base offense value for bribery which is four levels
above
other prohibited payments. U.S.S.G. 2E5.1. Moreover, conviction of the
bribery
portions of the statute invoke the employment disability at
FN12. See United States v. Bloch, 696 F.2d 1213 (9th Cir.
1983),
which upheld the bribery conviction of a labor union official who accepted
payments from band promoters in order to certify under the immigration laws
that
foreign musicians should be allowed entry for the purpose of performing
within
the United States despite the promoters' failure to comply with union rules
requiring one-for-one hiring of local musicians. The Mexican musicians
could not
be admitted to membership in the labor organization.
- 29 U.S.C. Sec. 504 which disqualifies individuals convicted of "bribery"
and
felonies involving abuse of union office for illegal gain at the expense of
union
members.
- OR ALTERNATIVELY,
b. with knowledge[FN13] that the payor intended to influence the
individual
recipient in respect to any of his/her actions, decisions, or duties either
as
a representative of employees OR as an officer or employee of his/her
labor organization
[29 U.S.C. Sec. 186(b)(1)].
FN13. See United States v. Bloch, 696 F.2d 1213, 1216
(9th
Cir. 1982), where the court stated that a "'willful' violation of 29 U.S.C.
§186 [(b)(1) and (a)(4)] requires only that the defendant [recipient]
act
with knowledge that the payments are from a person acting in the
interest
of an employer and are intended to influence the defendant's duties as a
union
employee." Id. at 1216; material in brackets and emphasis added.
Compare United States v. Ferrara, 458 F.2d 868, 873, n.5 (2d
Cir.
1972), where a conviction predicated on a union official's "intent to be
influenced" was sustained. But see United States v. Boylan,
620
F.2d 359, 362 (2d Cir. 1980), where the court held that Section 186 does not
require that the taker of prohibited payments have an "intent to be
influenced."
- Bribery of Employees and Anti-Union Committees of Employees
29 U.S.C. 186(a)(3), (b)(1), and (d)(2)
- PAYOR: see element #1 above.
- TRANSACTION: the payor paid, lent, delivered, or agreed to pay,
lend
or deliver, money or other thing of value in excess of an employee's normal
compensation to the recipient;
OR ALTERNATIVELY,
ANY PERSON requested, demanded, received, accepted, or agreed to receive or
accept, a payment, loan, or delivery of money or other thing of value in
excess
of an employee's normal compensation to the recipient.
- RECIPIENT: the actual or intended recipient was an employee or
group
or committee of employees of the employer on whose behalf payment is made
(other
than payments to employees who act openly for the employer in matters of
labor
relations or personnel administration described in 29 U.S.C. Sec.
186(c)(1));
- JURISDICTION: the employee(s) of the employer were employed in
an
industry affecting interstate or foreign commerce;
- SCIENTER: a participant (or aider and abettor) of the
transaction
who is charged as a criminal defendant acted
- willfully with knowledge of the transaction
- [29 U.S.C. Sec. 186(d)(2)], and
- for the purpose of causing the employee or group or committee of
employees
directly or indirectly to influence other employees in the exercise of the
right
to organize and bargain collectively with employers [29 U.S.C. Sec.
186(a)(3)];
- OR ALTERNATIVELY,
b. with knowledge that the payor intended to cause the recipient to
directly
or indirectly to influence other employees in the exercise of the right to
organize and bargain collectively with employers. 29 U.S.C. Sec.
186(b)(1) and
(d)(2).
- Excepted Transactions and Defenses
29 U.S.C. 186(c).
- The statute excepts participants in 9 categories of transactions from
liability under 29 U.S.C. Sec. 186(a) and (b). Therefore, in any criminal
prosecution, the government has the burden of rebutting, by proof beyond a
reasonable doubt, any evidence of the following excepted transactions:
- Payment or receipt of compensation for, or by reason of, service
as
an employee of the employer on whose behalf the payment is made pursuant to
29
U.S.C. Sec. 186(c)(1);[FN14]
FN14. See United States v. Burge, 990 F.2d 244 (6th Cir.
1992)
(receipt of sham consulting fees which were not bona fide compensation for
services rendered to the paying employer).
- Payments in satisfaction of court judgments, arbitration awards, and in
settlement of litigation in the absence of fraud or duress described in
29
U.S.C. Sec. 186(c)(2);
- Delivery of things of value with respect to the sale or purchase of an
article or commodity at the prevailing market price in the regular course of
business described in 29 U.S.C. Sec. 186(c)(3);[FN15]
FN15. United States v. Carlock, 806 F.2d 535 (5th Cir. 1986)
(rental
payments for non-operative equipment).
- Employer payment of union membership dues or equivalent fees which have
been deducted from each employee's wages pursuant to a written authorization
called a "checkoff" at 29 U.S.C. Sec. 186(c)(4);[FN16]
FN16. United States v. Papia, supra (bogus dues payments
to
avoid payment of union scale wages and benefits).
- Employer transmittal of contributions on behalf of employees, including
employees' contributions on their own behalf, to an employee pension or
welfare
benefit trust established in accordance with the provisions of 29 U.S.C.
Sec.
186(c)(5) - (c)(8). Such trusts must be jointly administered by equal
(voting) numbers of representatives of employees and employers. The
detailed
basis for contributions to the trust must be specified in writing.
Benefits may be used for employees, their families and dependents, but only
for
purposes specified in the statute such as retirement, health benefits, etc.
Pension and welfare benefit plans which are established both by employers
and
organizations representing employees are also regulated by the Employee
Retirement Income Security Act (ERISA). 29 U.S.C. Sec. 1002(1) and (2)
and
1003(3).
- Employer contributions to labor-management cooperation committees
established for purposes allowed by the Labor-Management Cooperation Act.
29
U.S.C. Sec. 186(c)(9) and 29 U.S.C. Sec. 175a.
[cited in USAM 9-132.010] |