Master Printers Ass'n, Div. of Printing Industry of Illinois v. Donovan, 82-1459

• Citation: 699 F.2d 370
• Decision Date: 31 January 1983
• Docket Number: No. 82-1459,82-1459
• Parties: 112 L.R.R.M. (BNA) 2738, 96 Lab.Cas. P 14,003 MASTER PRINTERS ASSOCIATION, A DIVISION OF PRINTING INDUSTRY OF ILLINOIS, Defendant-Appellant, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 370

699 F.2d 370

112 L.R.R.M. (BNA) 2738, 96 Lab.Cas. P 14,003

MASTER PRINTERS ASSOCIATION, A DIVISION OF PRINTING INDUSTRY OF ILLINOIS, Defendant-Appellant, v. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee.

No. 82-1459.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1982.

Decided Jan. 31, 1983.

Appeal from Northern District of Illinois, Eastern Division; Prentice H. Marshall, District Judge.

Maurice Baskin, Francis Thomas Coleman, Jr., Venable, Baetjer, Howard & Civiletti, Washington, D.C., for defendant-appellant.

Elaine Kaplan, Div. of Sp. Appellate and Supreme Court Litigation, Washington, D.C., for plaintiff-appellee.

Before PELL and BAUER, Circuit Judges, and TIMBERS, Senior Circuit Judge. ^*

BAUER, Circuit Judge.

The Secretary of Labor initiated this action against Master Printers Association (MPA), alleging that MPA violated section 203 of the Labor Management and Disclosure Act, 29 U.S.C. Sec. 433, by failing to file complete reports of its labor relations activity. MPA defended on the grounds that the Secretary's reading of section 203's disclosure requirements was overly broad and contrary to the legislative history, the statutory scheme and the plain language of the statute. It also contended that by interpreting section 203 to require complete disclosure of persuader and non-persuader labor relations activity whenever a labor consultant engaged in any persuader activity violated the constitutional rights of MPA and its members to freedom of speech, freedom of association, freedom from unreasonable searches and seizures, and due process.

The parties filed cross motions for summary judgment. The district court granted the Secretary's motion for summary judgment and denied MPA's motion for summary judgment, holding that section 203 required MPA to file the complete reports of all its labor relations activity for any year in which it engaged in some persuader activity. In rendering its memorandum opinion the district court thoroughly and carefully analyzed all the issues raised in this appeal. Accordingly, we affirm and adopt the excellent opinion of the district court, which is reported at 532 F.Supp. 1140.

PELL, Circuit Judge, dissenting.

The memorandum opinion of the district court, by virtue of adoption by the majority of the panel hearing this appeal, is now the opinion of this court. Because I regard the district court's opinion, notwithstanding the thorough and objective analysis it provides in its some 34 pages, to have reached an incorrect result I respectfully dissent.

As a beginning point, it appears important to me to focus on the undisputed facts. One is that the Master Printers Association (Association) is comprised of approximately 800 printing shops all of which are non-union plants, which status is probably a particularly uneasy one in the traditionally well organized craft of printing. In 1976 the former executive director of the Association delivered on three occasions speeches to employees of three different member employers. The Secretary of Labor determined that these three speeches constituted instances of "persuader" activity under Section 203 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 433(b) (the Act). The Secretary's interest in the Association did not stop there, however, as the Secretary demanded reports under the Act not only for the three employers in question but for the other some 797 members; members for whom no "persuader" services had been rendered. In effect and in actuality, the Secretary has sought to compel the Association to disclose its entire membership list and all monies received and disbursed in connection with the Association's non-persuading labor relations advice and services on behalf of all of its members. It is also important to focus on the fact that the Secretary on this appeal concedes that if the three speeches had not been made the Association would not have had to furnish the information now demanded.

The Secretary on this appeal and the district court in its opinion rely heavily on two cases from other circuits, 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 Price v. Wirtz, 412 F.2d 647 (5th Cir.1969) (en banc). Those two cases involved attorneys who gave advice on labor relations matters but who had gone across the line into direct contact with employees to have become persuaders within the meaning of the Act. Price, the later case, even in the limited sphere of contacts of attorneys as contrasted to the broad relationship here involved, came from a closely divided 5th Circuit. The fact that there was a majority opinion joined in by six judges and a strong dissent by Judge Dyer, joined in by Judges Gewin, Coleman, Ainsworth and Godbold, emphasizes the perilous voyage into the shoals of constitutional violation inherent in the judicial gloss put on the Act by the present majority opinion. An important additional element, and one differing from Douglas and Price, exists in the present case and that is the associational aspect of this membership organization. Thus, in the present case, it appears to me if the Congress had meant what the Secretary, district court, and the majority opinion of this court say it meant, not only would there have been an infringement of the Association's right of free speech and due process, but an infringement on the First Amendment right of free association.

The pertinent parts of Section 203 of the Act involved here read as follows:

(b) ...

Every such person [who undertakes persuader activity] 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.

I find it difficult to read (c) other than as a limitation, specifying the boundaries of the report required in (b) as those instances where only those employers to whom or at which persuader activities were provided and eliminating from the scope of (b) those persons who were merely the recipient of advice such as that rendered by the Association in this case. Nevertheless, the district court, accepting what I regard as the weird construction placed on the Act by the Secretary, refers to this as being the clear expression of Congressional intent. Yet elsewhere in its opinion, the district court candidly states that it is "apparent from reading the act that the language of paragraphs (b) and (c) requires reconciliation." The district court then follows with a quotation, which apparently it approves, from Aaron, The Labor Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851, 891 (1960):

Read literally, Section 203(b) seems to compel [the] conclusion [that one persuader activity triggers the requirement of 100% reporting including non-persuader activities]; but the opposite conclusion is indicated by section 203(c), which specifically states that consultants need not report the mere giving of advice to employers, or the representation of employers in an arbitration, administrative, or judicial proceeding. This is another example of the ambiguities produced by the inartistic draftsmanship which characterizes much of the statute. (Emphasis added.)

I have a conceptual difficulty in equating clear expression of "Congressional intent" with "ambiguities." Further, the district court while referring to the "potentially confusing language" of the Act then eliminates the potentiality by finding persuasively that the exemption was...