Humphreys, Hutcheson & Moseley v. Donovan

Decision Date22 June 1983
Docket NumberNo. 78-3450.,78-3450.
PartiesHUMPHREYS, HUTCHESON & MOSELEY v. Raymond J. DONOVAN, Secretary of Labor.
CourtU.S. District Court — Middle District of Tennessee

COPYRIGHT MATERIAL OMITTED

James V. Doramus, Neal & Harwell, Nashville, Tenn., for plaintiff.

June Rose Carbone, Dept. of Justice, Washington, D.C. (Briefs), R. John Seibert and Brian N. Smiley, Washington, D.C., for defendant.

MEMORANDUM

JOHN T. NIXON, District Judge.

This action seeking a declaratory judgment and injunctive relief presents novel and sensitive issues under sections 203(b) and 204, 29 U.S.C. § 433(b) and § 434 of Title II of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 401 et seq. Among other things, § 203 requires disclosure and reporting of certain information by every person involved in labor persuader activities and § 204 provides an exemption to attorneys from the disclosure and reporting requirements of § 203 for information obtained in the course of a legitimate attorney-client relationship. Jurisdiction over this dispute is conferred upon this Court pursuant to 28 U.S.C. §§ 1331, 1337 and 1345 and § 210 of the LMRDA, 29 U.S.C. § 440 and has not been disputed. Both parties, agreeing that this case may be disposed of on summary judgment have so moved pursuant to Fed. R.Civ.P. 56, seeking final disposition of this case. This Court finding the material issues of fact undisputed concludes, for the reasons that follow, that judgment will enter in favor of the defendant Secretary of Labor1 and the plaintiff will be ORDERED to comply with § 203(b).

I.

The facts are not in dispute. The plaintiff is the Chattanooga, Tennessee law firm of Humphreys, Hutcheson & Moseley, which has a significant labor law practice. Affidavit of Hal F.S. Clements (October 24, 1978). In 1977 one of the plaintiffs' clients, Southern Silk Mills, Inc., located in Spring City, Rhea County, Tennessee, was facing a National Labor Relations Board (NLRB) conducted election. The purpose of that election was to determine whether Southern Silk Mills' employees would be represented by the Amalgamated Clothing and Textile Workers Union (ACTWU), a labor organization. The plaintiff represented Southern Silk Mills before the NLRB and assisted in reaching agreements concerning the time, place and date of the election and describing the bargaining unit involved. Southern Silk Mills, its employees and the Union engaged in a campaign over the question of unionization.

The parties stipulate that prior to the NLRB election, William P. Hutcheson and Ray H. Moseley, partners in the law firm of Humphreys, Hutcheson and Moseley, made speeches to several groups of Southern Silk Mill employees. These speeches were made pursuant to an agreement or arrangement between Southern Silk Mills and the plaintiff, the object of which was to persuade employees of Southern Silk Mills to vote against the union in the upcoming NLRB election. Stipulation, Government's Exhibit B. Because of Mr. Moseley's prior experience involving a strike by the Textile Workers Union, which is the predecessor to the Amalgamated Clothing & Textile Workers Union, Southern Silk Mills selected him to address its employees on the union's prior activities. Mr. Moseley was introduced as an attorney in the law firm representing Southern Silk Mills.2 He related the events involving the Union as set forth by the United States District Court in Kayser-Roth Corp. v. Textile Workers Union of America, AFL-CIO, 347 F.Supp. 801 (E.D. Tenn.1972), aff'd, 479 F.2d 524 (6th Cir.), cert. denied, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973), in which the court assessed damages against the Union for unlawful strike activity.3 Mr. Hutcheson also spoke on the union violence in the Kayser-Roth case and reiterated the need to reject the union, as did Mr. Moseley. See, e.g., Secretary's Exhibit G. at 15-16.

The plaintiff has refused to comply with the disclosure and reporting requirements of § 203(b), 29 U.S.C. § 433(b), and mounts several challenges against application of § 203(b) to its labor persuader activities. First, the plaintiff argues that § 203(b) does not apply to it because the intent of Congress when enacting the statute was to discourage covert persuader activities. Accordingly, the plaintiff argues that because its relationship to Southern Silk Mills was announced to employees before the plaintiff's presentation, its activities were not covert and thus § 203(b) does not apply. Second, the plaintiff contends that if § 203(b) does apply to its activities, then application of that statute violates the plaintiff's First Amendment rights of speech, association and privacy. The plaintiff, alternatively, maintains that if the Court finds that § 203(b) may constitutionally be applied to the plaintiff, § 204, 29 U.S.C. § 434, exempts it from supplying any information which it obtained in the course of its legitimate attorney-client relationship with Southern Silk Mills.

As expected, the Secretary disagrees with the plaintiff's argument and has brought a counterclaim seeking to compel the plaintiff to comply with the 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.2d 315 (5th Cir.1966), overruled in part on other grounds, Price v. Wirtz, 412 F.2d 647 (5th Cir.1969), the Secretary argues that not only is the plaintiff subject to the requirements of § 203(b), but that it does not violate the First Amendment to subject the plaintiff to this section. Moreover, the Secretary maintains that § 204 does not prevent the plaintiff from complying with § 203(b).

II.

The legislative history surrounding the LMRDA has been comprehensively reviewed by several courts. See, e.g., Donovan v. Master Printers Association, 532 F.Supp. 1140 (N.D.Ill.1981), aff'd, 699 F.2d 370 (7th Cir.1983); Douglas v. Wirtz; Wirtz v. Fowler, overruled in part by Price v. Wirtz. These courts have found and this Court agrees that the LMRDA was the result of extensive McClellan Committee hearings concerned with "management-hired labor spies and undisclosed middlemen who engaged in espionage and deceptive persuasion." Wirtz v. Fowler, 372 F.2d at 324. Donovan, 532 F.Supp. at 1141-42. The focus of the LMRDA was on the influence of middlemen, hired by management, who interfered with the exercise by employees of their rights to form and join unions, provided under § 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157. Congress was of one mind in enacting the LMRDA, as demonstrated in the House and Senate reports accompanying the Act. The House report explained:

The hearings of the McClellan committee have also disclosed evidence that some sections of management have refused to recognize that employees have a right to form and join unions without interference and to enjoy freely the right to bargain collectively with their employer concerning their wages, hours, and other conditions of employment. The hearings of the McClellan committee have shown that some employers have cooperated with crooks and racketeers in the labor movement at the expense of their own employees and contrary to the public interest. Some employers have employed so-called middlemen to organize "no-union committees" and engage in other activities to prevent union organization among their employees. It is essential that any legislation which purports to drive corruption and improper activities out of labor-management relations contain provisions dealing effectively with these problems.

H.Rep. 741, 86th Cong., 1st Sess., reprinted in 1959 U.S.Code & Admin.News 2318, 2424, 2429 (1959). Using almost identical language the Senate Report explained:

It is also plain that there are important sections of management that refused to recognize that the employees have a right to form and join unions without interference and to enjoy freely the right to bargain collectively with their employer concerning their wages, working conditions, and other conditions of employment. The hearings of the McClellan committee have shown that employers have often cooperated with and even aided crooks and racketeers in the labor movement at the expense of their own employees. They have employed so-called middlemen to organize "no-union committees" and engage in other activities to prevent union organization among their employees. They have financed community campaigns to defeat union organization. They have employed investigators and informers to report on the organizing activities of employees and unions. It is essential that any legislation which purports to drive corruption and improper activities out of labor-management relations contain provisions dealing effectively with these problems.

S.Rep. 187, 86th Cong., 1st Sess., reprinted in 1959 U.S.Code & Admin.News 2318, 2322-23 (1959).

Because of the negative and corruptive effect of outside labor consultants and middlemen on the exercise of employee rights, Congress viewed with disfavor the practices of middlemen. Again, the Senate Report noted the covert activities of these labor consultants and thought that public disclosure was the touchstone necessary to eliminate their undesirable effects.

The committee notes that in almost every instance of corruption in the labor-management field there have been direct or indirect management involvements. The report of the McClellan committee describes management middlemen flitting about the country on behalf of employers to defeat attempts at labor organization. In some cases they work directly on employees or through committees to discourage legitimate organizational drives or set up company-dominated unions. These middlemen have been known to negotiate sweetheart contracts. They have been involved in bribery and
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    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • 28 Enero 2010
    ...In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1037 (2nd Cir.1984). Humphreys, Hutcheson & Moseley v. Donovan, 568 F.Supp. 161, 175 (M.D.Tenn.1983), aff'd,755 F.2d 1211 (6th Cir.1985), is instructive on the determination of whether the attorney-client privilege applies. In Humphreys,......
  • Humphreys, Hutcheson and Moseley v. Donovan
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    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
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    ...counterclaim for an order requiring the attorneys to make the reports. In an extensive and careful opinion, Humphreys, Hutcheson & Moseley v. Donovan, 568 F.Supp. 161 (M.D.Tenn.1983), the district court held that the plaintiff attorneys must comply with all of the disclosure requirements of......
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    ...a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. Humphreys, Hutcheson & Moseley v. Donovan, 568 F.Supp. 161, 175 (M.D. Tenn. 1983), aff'd, 755 F.2d 1211 (6th Cir. 1985). “Communications among non-attorneys in a corporation may be privileged if ma......
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