Medina, Waterman and Moore, Circuit Judges. Waterman, C. J., (concurring).
In 1964 Vincent J. Ricciardi and Stanley M. Unger, Vice-President and Secretary-Treasurer, respectively, of Local 32-E of the Building Service Employees International Union, both were indicted under 29 U.S.C. § 186 for knowingly demanding and receiving money from employers of whose employees Ricciardi and Unger were representatives. During the years in question, Local 32-E had approximately 8,000 members, most of them building superintendents of apartment houses in Bronx and Westchester Counties, New York, but some of them employed in various country clubs in the area, at race tracks, in a department store, and in an amusement park. Unger worked primarily for Local 32-E itself; Ricciardi was in charge of Council 7, a subdivision of Local 32-E representing employees in small apartment buildings, generally with 30 or less apartments. The employers who made the payments which were the subject of the indictments against Ricciardi and Unger were owners of apartment houses in the Bronx.
After trial before Judge Weinfeld, the jury found Ricciardi guilty on fifteen counts. He was sentenced to one year on each of the first fourteen, the sentences to be served concurrently, and was given a suspended sentence of one year on the fifteenth count. After trial before Judge Murphy, the jury found Unger guilty on three counts. He was sentenced to one year on each count, the sentences to be served concurrently.
Ricciardi and Unger were tried separately. In the appeals before us, Ricciardi challenges only the existence of jurisdiction under the statute; Unger challenges not only the existence of jurisdiction but also the indictment, the trial court's construction of the substantive provisions of the statute, and the sufficiency of the evidence under the substantive provisions of the statute.
I. Jurisdiction Under the Statute.
The indictments against both Ricciardi and Unger were phrased in terms of subsections (b)(1) and (a)(1) of 29 U.S.C. § 186. Read together, the two subsections make it unlawful "to request, demand, receive, or accept . . . any payment, loan, or delivery of any money or other thing of value," 29 U.S.C. § 186(b)(1), from an employer "to any representative of any of his employees who are employed in an industry affecting commerce . . .," 29 U.S.C. § 186(a)(1). The jurisdictional test for the cases against both appellants is therefore: are any of the employees of the employers who made the payments "employed in an industry affecting commerce"? 29 U.S.C. § 142(1) defines "industry affecting commerce" as "any industry or activity in commerce or in which a labor dispute would burden or obstruct commerce or tend to burden or obstruct commerce or the free flow of commerce"; and "commerce" in turn is defined by 29 U.S.C. § 152(6) to mean "trade . . . among the several States . . ."
Although in both cases now before us the jurisdictional question was submitted to the jury, the question of what activities constitute an "industry affecting commerce" under 29 U.S.C. § 186 has almost always been regarded as a question of law for the court to decide, leaving to the jury only the determination of what activities the defendant had in fact engaged in. United States v. Gibas, 300 F.2d 836, 839 (7th Cir.), cert. denied, 371 U.S. 817, 9 L. Ed. 2d 58, 83 S. Ct. 32 (1962); United States v. Pecora, 173 F. Supp. 764 (W. D. Pa. 1958), aff'd, 267 F.2d 512 (3d Cir. 1959); see United States v. Donovan, 339 F.2d 404, 410 (7th Cir. 1964). The same allocation of function between court and jury has also been made under the similar Hobbs Act, 18 U.S.C. § 1951, which proscribes the obstruction of commerce by robbery or extortion. United States v. Green, 246 F.2d 155, 160-61 (7th Cir.), cert. denied, 355 U.S. 871, 2 L. Ed. 2d 76, 78 S. Ct. 122 (1957); United States v. Lowe, 234 F.2d 919, 922 (3d Cir.), cert. denied, 352 U.S. 838, 1 L. Ed. 2d 56, 77 S. Ct. 59 (1956); United States v. Varlack, 225 F.2d 665, 670, 672 (2d Cir. 1955); Hulahan v. United States, 214 F.2d 441, 445-46 (8th Cir.), cert. denied, 348 U.S. 856, 99 L. Ed. 675, 75 S. Ct. 81 (1954); Nick v. United States, 122 F.2d 660, 673, 138 A.L.R. 791 (8th Cir.), cert. denied, 314 U.S. 687, 86 L. Ed. 550, 62 S. Ct. 302 (1941).
Ricciardi maintains, not that the submission to the jury of the jurisdictional question was prejudicial to him, but that improper standards were used to resolve the question and that there was insufficient evidence to support a finding that the employees worked in an "industry affecting commerce."
Ricciardi claims in particular that a charge should have been given to the effect that the exclusive handling by the New York State Labor Board of labor disputes in multiple dwellings was evidence that the operation of such buildings did not affect interstate commerce. We disagree and hold that the trial judge was under no obligation to tell the jury to consider what the New York Board thought its jurisdiction was, in determining whether the operation of the buildings "affects commerce."
Nor did the trial judge err in instructing the jury that it could consider that the industry in question included all apartment houses in the Bronx with 30 or less apartments, whether or not they had contracts with Council 7 of Local 32-E. The general statutory definition in 29 U.S.C. § 142(1) makes clear that an industry may be one "affecting commerce" if a labor dispute in the industry would tend to burden commerce. To apply this jurisdictional test, the relevant industry must first be determined. 29 U.S.C. § 186(a)(1) and (b)(1) prohibit payment and the receipt of payment from an employer "to any representative of any of his employees who are employed in an industry affecting commerce." To confine the term "industry" to the business activities of the employers who made the allegedly unlawful payments, or to the business activities of employers whose employees were represented by the recipients of such payments from employers, would be contrary to the broad connotations of the term "industry." Instead, the relevant industry for the purposes of 29 U.S.C. § 186(a)(1) and (b)(1) comprises all business activities in the same field as the business activities of employers whose employees were represented by the recipients of the allegedly unlawful payments. Applying this test, it was not error for the trial court to instruct the jury that the relevant industry was "the ownership, operation and management of apartment houses in the Bronx of 30 or less apartments."
Ricciardi's challenge to the sufficiency of the evidence of jurisdiction must also fail. There was no dispute that the superintendents represented by Local 32-E ran the furnaces for their buildings, nor that the fuel for those furnaces, although purchased from local distributors, came ultimately from out of state. Ricciardi argues that the amount of fuel used in the small apartment houses in the Bronx whose owners made payments to him was so small that it could have no "significant effect upon the stream of commerce," and could not deflect its flow "by so much as a microscopic ripple." But the President of Local 32-E and Ricciardi himself testified that in 1959 Council 7 of Local 32-E, the subdivision headed by Ricciardi, represented employees in between 700 and 1,000 buildings with 30 or less apartments. A number of employers who made pay-offs to Ricciardi testified that their fuel bills ran from $1,200 (for a 20-unit building) to $4,500 (for a 28-unit building) a year; and no evidence was offered by Ricciardi which would indicate that these figures were not representative of the industry.
To be sure, there was no testimony which said in so many words that a strike by the superintendents of the buildings with 30 or less units, who were represented by Council 7 of Local 32-E, would tend to curtail interstate commerce; but the Government should not be penalized for its failure to belabor the obvious. As Mr. Justice Metcalf wrote in Commonwealth v. Peckham, 68 Mass. (2 Gray) 514, 515 (1854): "Jurors are not to be presumed ignorant of what everybody else knows. And they are allowed to act upon matters within their general knowledge, without any testimony on those matters." See also Rostad v. Portland R'y, Light & Power Co., 101 Ore. 569, 581, 201 Pac. 184, 188 (1921) ("triers of fact cannot, in the nature of things, be divested of general knowledge of practical affairs"); McCormick, Evidence § 324 at p. 691 (1954); 9 Wigmore, Evidence § 2569 (3d ed. 1940); Morgan, Judicial Notice, 57 Harv. L. Rev. 269, 272 (1944). If a jury does not need to be told that gin is intoxicating, Commonwealth v. Peckham, supra, or that good rugs are valuable, Shikany v. Salt Creek Transp. Co., 48 Wyo. 190, 45 P. 2d 645 (1935), or that spare parts were difficult to obtain in this country during 1943 and 1944, Holt v. Pariser, 161 Pa. Super. 315, 54 A. 2d 89 (1947), the jury here did not need to be told that a strike or a slow-down by employees who run machines would affect the amount of material used in the machines. Cf. Apex Hosiery Co. v. Leader, 310 U.S. 469, 84 L. Ed. 1311, 60 S. Ct. 982 (1940). To paraphrase Rule 9 of the Uniform Rules of Evidence, the proposition is one of generalized knowledge so universally known that it cannot reasonably be the subject of dispute. The jury could apply this proposition to the testimony before it as to the responsibilities of the building superintendents and as to the amount of fuel used in the buildings, and conclude that a labor dispute in the industry would interfere with the sale or distribution of out-of-state fuel on other than a de minimis basis.
The Supreme Court has repeatedly said that in passing the National Labor Relations Act, Congress intended the coverage of the Act to reach to "the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." NLRB v. Reliance Fuel Oil Co., 371 U.S. 224, 226, 9 L. Ed. 2d 279, 83 S. Ct. 312 (1963); see Guss v. Utah Labor Relations Bd., 353 U.S. 1, 3, 1 L. Ed. 2d 601, 77 S. Ct. 598 (1957). The same may fairly be said of the congressional intent as to the statute now under consideration, since the Labor-Management Relations Act of 1947, of which the predecessor of the present 29 U.S.C. § 186 was a part, referred to the definition of "commerce" used in the National Labor Relations Act, see 29 U.S.C. § 142(3), and since the definition of "industry affecting commerce" in the new act, 29 U.S.C. § 142(1), closely parallels the definition of "affecting commerce" in the National Labor Relations Act, 29 U.S.C. § 152(7). On the basis of evidence introduced by the Government and common knowledge as to the effects of strikes and slow-downs, there is no question but that the activities here in question fall within the permissible reach of the commerce clause. See Katzenbach v. McClung, 379 U.S. 294, 13 L. Ed. 2d 290, 85 S. Ct. 377 (1964) (Civil Rights Act of 1964, as applied to a restaurant buying less than half its food supplies - some $69,683 a year - from out of state, held constitutional); Wickard v. Filburn, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82 (1942) (Congress under the commerce clause can set limits to wheat production even if the farmer consumes all of his own production on his farm); United States v. Darby, 312 U.S. 100, 85 L. Ed. 609, 61 S. Ct. 451 (1941); NLRB v. Fainblatt, 306 U.S. 601, 83 L. Ed. 1014, 59 S. Ct. 668 (1939).
We hold that proper standards were used to resolve the jurisdictional question and that there was sufficient evidence of jurisdiction ...