Fowler v. Wirtz

• Decision Date: 09 September 1964
• Docket Number: Civ. No. 608-62-M.
• Citation: 236 F. Supp. 22
• Parties: Cody FOWLER et al., Plaintiffs, v. W. Willard WIRTZ, as Secretary of Labor of the United States of America, Defendant.
• Court: U.S. District Court — Southern District of Florida

236 F. Supp. 22

Cody FOWLER et al., Plaintiffs, v. W. Willard WIRTZ, as Secretary of Labor of the United States of America, Defendant.

Civ. No. 608-62-M.

United States District Court S. D. Florida, Miami Division.

September 9, 1964.

COPYRIGHT MATERIAL OMITTED

Paul & Sams, Miami, Fla., for plaintiffs.

John W. Douglas, Asst. Atty. Gen., William A. Meadows, Jr., U. S. Atty., Aaron A. Foosaner, Asst. U. S. Atty., Harland F. Leathers, Atty., Dept. of Justice, Charles Donahue, Sol., James R. Beaird, Associate Sol., Beverley R. Worrell, Regional Atty., U. S. Dept. of Labor, of counsel, for defendant.

FULTON, District Judge.

The Plaintiffs are attorneys practicing law in Florida, and the Defendant, as Secretary of Labor of the United States, is charged with enforcement of the provisions of the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 519, 29 U.S.C. § 401 et seq., hereinafter referred to as "the Act").

This cause was initiated by the Plaintiffs upon the complaint that Defendant had attempted to compel Plaintiffs to file certain reports allegedly required by the Act. The Plaintiffs, as attorneys, requested the declaration of their rights under the circumstances and in particular that reports were not required of them. After motions the Defendant filed his answer, as well as a counterclaim to require Plaintiffs to file the subject reports. Plaintiffs filed their reply to the counterclaim, and the issue was thus joined. Each of the parties has filed a Motion for Summary Judgment.

Defendant Secretary demanded that Plaintiffs file the reports specified in Section 203(b) of the Act because the Plaintiffs allegedly, pursuant to an agreement or arrangement with an employer (as defined in such Section) undertook activities an object of which was to persuade employees as to the manner of exercising their rights to organize, or to supply an employer with information concerning the union activities of his employees. The Plaintiffs contend that the Act is not applicable to them because of any activities shown in this case to have been undertaken by them on behalf of their clients. They contend further that if the Act were applied to them, it would be unconstitutional.

Defendant Secretary contends that the filing of reports is required because of Plaintiffs' alleged activities on behalf of four employers:

1. L. D. Plante, Inc.;

2. Plant City Steel Corporation;

3. Speed Sprayer Plant of John Bean Division, Food Machinery Corporation; and

4. Guild Industries Manufacturing Corporation.

During 1960 and 1961, the years involved in this litigation, Plaintiffs rendered legal advice and services to these four employers in connection with administrative and judicial proceedings and represented them before courts and administrative agencies and in collective bargaining negotiations. During the same years, Plaintiffs provided and were paid for legal advice and services to labor law clients other than these four employers.

Certain factual matters are in dispute. Plaintiffs contend that the Court may not consider the Defendant's version of these facts, a complete summary of which is set forth in the Memorandum in Support of Defendant's Motion for Summary Judgment, because of the attorney-client privilege. For the purpose of this decision it is unnecessary to determine whether the attorney-client privilege bars consideration of these matters. The Court is of the opinion that Plaintiffs are not required to file the subject reports even if the Court accepts the version of these factual matters offered by the Defendant and resolves all factual disputes against Plaintiffs.

L. D. PLANTE, INC.

At L. D. Plante, Inc., a union filed a petition with the National Labor Relations Board (the "Labor Board") for a representation election and thereafter filed with the Labor Board unfair labor practice charges upon which a complaint was issued by the Regional Director of the Labor Board. During the pendency of the representation proceedings, an attorney associated with Plaintiffs spoke as the Company's attorney to Company employees at a meeting with respect to legal matters in connection with the election proceeding and answered questions posed by employees. The employees were informed that this attorney associated with Plaintiffs was the Company's attorney.

PLANT CITY STEEL CORPORATION

At Plant City Steel Corporation the Boilermakers' union had won a representation election. Objections to the election were filed by the Company and overruled by the Labor Board. The resulting certification of the union was tested by the Company, and, at times material herein, was pending on appeal in the United States Court of Appeals for the Fifth Circuit. During the pendency of this case, associates of Plaintiffs who were introduced to employees of the Company at a meeting as attorneys of the Company, spoke to the employees concerning the legal effect of the organization of another union during the pendency of such appeal, and matters related thereto.

SPEED SPRAYER PLANT

At Speed Sprayer Plant a union filed a representation petition, and an election was held in March, 1961, resulting in the certification of the union as bargaining representative for certain employees. Collective bargaining negotiations commenced resulting in a contract being signed in November, 1961. Prior to the holding of the election an associate of Plaintiffs, known by the employees to be an attorney for the Company, appeared and spoke at a meeting of employees of the Company answering questions posed by employees calling for a response as to legal issues.

GUILD INDUSTRIES MANUFACTURING CORPORATION

In August, 1960 a union filed an unfair labor practice charge against Guild Industries Manufacturing Corporation. In October, this union filed a representation petition. Additional unfair labor practice charges were later filed against the Company, as a result of which the Labor Board issued a complaint. In September or October, 1960, the Department of Labor conducted an investigation into the question of Plaintiffs' compliance with the Fair Labor Standards Act. Immediately prior to the date set for the representation election, the Union withdrew with the consent of the Labor Board. The Trial Examiner found that the Company had committed unfair labor practices. This conclusion was affirmed by the Labor Board and the Court of Appeals. Associates of Plaintiffs, having been introduced as and known to be the Company's attorneys conducted an investigation questioning certain employees of Guild orally and in writing with respect to the unfair labor practice charges filed against the Company and the Labor Board's complaint issued on these charges.

In each of the foregoing instances, the Plaintiffs, and their associates were acting openly as attorneys for the four employers, representing them on legal matters having to do with administrative or judicial proceedings or collective bargaining negotiations. In each instance, the employees of the companies involved were specifically advised and knew that the attorneys were acting as the attorneys for the respective companies. In each instance the matters under discussion and the activities of the Plaintiffs and their attorneys were activities of a legal nature performed in the course of the attorney-client relationship.

The pertinent portions of the Act are as follows:

"§ 203. * * * (b) Every person who pursuant to any agreement or arrangement with an employer undertakes activities where on 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 correspondent 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 advise 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.

"(d) Nothing contained in this section shall be construed to require an employer to file a report under subsection (a) of this section unless he has made an expenditure, payment, loan, agreement, or arrangement of the kind described therein. Nothing contained in this section shall be construed to require any other person to file a report under subsection (b)

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