Douglas v. Wirtz, 9870.

Decision Date08 October 1965
Docket NumberNo. 9870.,9870.
PartiesR. D. DOUGLAS, Jr., Appellee, v. W. Willard WIRTZ, Secretary of Labor of the United States Department of Labor, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Jacob I. Karro, Deputy Associate Sol., Dept. of Labor John W. Douglas, Asst. Atty. Gen., and Alan S. Rosenthal and Robert C. McDiarmid, Attys., Dept. of Justice (Charles Donahue, Sol., James R. Beaird, Associate Sol., and Nathan Dodell, Atty., Dept. of Labor, on brief), for appellant.

R. D. Douglas, Jr., Greensboro, N. C. (C. Kitchin Josey, and Douglas, Ravenel, Josey & Hardy, Greensboro, N. C., on brief), appellee, pro se.

Before BRYAN and BELL, Circuit Judges, and LEWIS, District Judge.

Certiorari Denied February 21, 1966. See 86 S.Ct. 893.

ALBERT V. BRYAN, Circuit Judge:

The Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, particularly in § 203(b) and (c), 29 U.S. C. §§ 401, 433(b) and (c), was construed by the District Court at the suit of R. D. Douglas, Jr., an attorney at law, contrary to the administrative interpretation of the Secretary of Labor, who now appeals.

The substance of these sections of the law, and their present relevancy, are stated in the point pressed here by the Secretary. It is this: that since, concededly, a lawyer accepting retainment by an employer "to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively", is required by § 203(b) (1) to report these activities annually to the Secretary, the lawyer is also required by the further provisions of that section to include in such report, not only his receipts and disbursements in connection with those particular undertakings, but as well all his receipts (with related disbursements) in the same year for advice or services in respect to labor relations, even though the advice or services were not within the sphere of the statutory persuasions.

The District Court, in sustaining the argument of Douglas, held that § 203(c) exempts the lawyer from reporting any receipt or expenditure in connection with labor relations advice or services not incident to the employee-persuasion effort of § (b) (1). The terms of the Act and its legislative history, we believe, compel a contrary interpretation.

The sections just cited, § 203(b) and (c), are controlling here and provide:

"(b) Every person who pursuant to any agreement or arrangement with an employer undertakes activities where an object thereof is, directly or indirectly —
(1) to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing; or
(2) to supply an employer with information concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer, except information for use solely in conjunction with an administrative or arbitral proceeding or a criminal or civil judicial proceeding;
shall file within thirty days after entering into such agreement or arrangement a report with the Secretary, signed by its president and treasurer or corresponding principal officers, containing the name under which such person is engaged in doing business and the address of its principal office, and a detailed statement of the terms and conditions of such agreement or arrangement. Every such person shall file annually, with respect to each fiscal year during which payments were made as a result of such an agreement or arrangement, a report with the Secretary, signed by its president and treasurer or corresponding principal officers, containing a statement (A) of its receipts of any kind from employers on account of labor relations advice or services, designating the sources thereof, and (B) of its disbursements of any kind, in connection with such services and the purposes thereof. In each such case such information shall be set forth in such categories as the Secretary may prescribe.
"(c) Nothing in this section shall be construed to require any employer or other person to file a report covering the services of such person by reason of his giving or agreeing to give advice to such employer or representing or agreeing to represent such employer before any court, administrative agency, or tribunal of arbitration or engaging or agreeing to engage in collective bargaining on behalf of such employer with respect to wages, hours, or other terms or conditions of employment or the negotiation of an agreement or any question arising thereunder."

Plaintiff-appellee, an attorney in good standing, raised the present issue in an action for a judgment declaring his obligations under the Act. In 1960 and 1961 he undertook persuasion services within the meaning of § 203(b) (1) and filed the required 30-day report. However, he refused in the annual report to note any of his receipts and expenses "on account of labor relations advice or service", or the sources thereof, which were not related to the persuasion outlined in § (b) (1). For some reportable activities under § (b) (1) in 1960 and 1961, final payment was not received from his employers until 1962 and no formal annual report was filed for the year 1962.

Section (b), we emphasize, prescribes two reports. One must be filed within 30 days after the agreement or arrangement for the persuasion activity has been consummated. It is confined to each undertaking for that purpose. Another and far more comprehensive report is required annually. It is this report, as already indicated, with which this case is concerned.

The annual report must designate the source and amount of "receipts of any kind from employers on account of labor relations advice or services", § (b) (A). Highly relevant is the reference to "advice". It is not mentioned in § (b) (1) — the persuasion clause — so that, the Secretary stresses, this reference contemplates the inclusion of advice which is beyond the scope of the persuasion of § (b) (1). Thus the language literally requires a report of payments for other advice unless the requirement of the annual report is narrowed by § (c). But we find no clause in § (c) explicitly delineating the advice which it excepts. Quite baldly it excludes the reporting of services comprising advice, representation and negotiation.

Thus it appears that "advice" is required to be reported by § (b) (A), but is exempted by § (c). A reasonable reconciliation of the conflict, we hold, is to compel the reporting of all income and expenditures in connection with labor relations advice and services, given or rendered aside from the persuasion activities, if the attorney has within the same reporting period also either acted or received payment as a persuader under § (b) (1). Consistently, he would not be required to report fees and expenses for independent advice if there has been neither a persuasion service performed, nor payment for a previous service received, in that year.

This is the necessary conclusion from the wording of §§ (b) (A) and (c). Unless "advice" in the former embraces independent advice, it has no meaning whatsoever. This result in itself would suggest misconstruction of the provision. As the word appears in § (c), it plainly refers to advice apart from the statutory persuasion. Indeed, this is the contention of the lawyer-appellee. The exemption in § (c) is an excusal of any filing whatsoever "by reason of * * * giving or agreeing to give advice." In our judgment the quoted phrase is to be understood to declare that advice in itself and alone does not create an obligation to report. But the two sections together declare that when persuasion services or receipts therefor and...

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  • Humphreys, Hutcheson & Moseley v. Donovan
    • United States
    • U.S. District Court — Middle District of Tennessee
    • 22 Junio 1983
    ...disclosure and reporting requirements of § 203(b). Finding support for his position in the Fourth Circuit's decision in Douglas v. Wirtz, 353 F.2d 30 (4th Cir.1965), cert. denied, 383 U.S. 909, 86 S.Ct. 893, 15 L.Ed.2d 665 (1966), and the Fifth Circuit's decision in Wirtz v. Fowler, 372 F.2......
  • Donovan v. MASTER PRINTERS ASS'N, ETC.
    • United States
    • U.S. District Court — Northern District of Illinois
    • 10 Diciembre 1981
    ...both sides agree that judicial interpretation to date generally supports the Secretary's interpretation of the Act. See Douglas v. Wirtz, 353 F.2d 30 (4th Cir. 1965), cert. denied, 383 U.S. 909, 86 S.Ct. 893, 15 L.Ed.2d 665 (1966); Wirtz v. Fowler, 372 F.2d 315 (5th Cir. 1966) overruled, Pr......
  • Master Printers of America v. Donovan
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 26 Diciembre 1984
    ...to a belief, position, or course of action." We find nothing ambiguous or confusing about this definition. Indeed, in Douglas v. Wirtz, 353 F.2d 30 (4th Cir.1965), cert. denied, 383 U.S. 909, 86 S.Ct. 893, 15 L.Ed.2d 665 (1966), we noted that the term "persuade" is commonly--and properly--u......
  • Humphreys, Hutcheson and Moseley v. Donovan
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 20 Febrero 1985
    ...of an agreement or any question arising thereunder.8 See Price v. Wirtz, 412 F.2d 647, 649 (5th Cir.1969) (en banc); Douglas v. Wirtz, 353 F.2d 30, 32 (4th Cir.1965), cert. denied, 383 U.S. 909, 86 S.Ct. 893, 15 L.Ed.2d 665 (1966).9 Congress recognized that the ordinary practice of labor la......
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