INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS OF AMERICA, INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 15537.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 3, 1960. Decided June 21, 1965.
771
The fact that this is an antitrust case is relevant. Plaintiffs had a greater incentive to inform than does a private citizen in an ordinary case. Plaintiffs were customers of defendants, and they stood to benefit directly from a cessation of the activities complained of. See Carrow, Governmental Nondisclosure in Judicial Proceedings, 107 U.PA.L.REV. 166, 180-81 (1958). Furthermore, if the Government obtains a conviction against defendants in a criminal action, the plaintiffs’ task in a subsequent treble-damage action is made much easier, since the criminal conviction is prima facie evidence of violation in the treble-damage action.
We also note that plaintiffs have by bringing suit subjected themselves to civil discovery. Clearly they would have to give such information related to past informing as they have available. Information that they no longer had available might still be in the Government filеs. No policy is furthered by permitting the Government to suppress information which the plaintiffs would have had to disclose. The Government asserts that a private party cannot waive the Government‘s privilege. But an informer can waive the privilege by simply identifying himself.
IV.
In considering the documents or classes of documents claimed to be privileged, the trial judge should weigh their relevance to possible defenses, the seriousness of this litigation, the possible significance of the informer‘s information, and other relevant factors. In considering the public interest in protecting the flow of information to the Government the court should bear in mind that no informer can ever be certain of anonymity and that the informer in antitrust matters has material incentives to give information, in addition to his general concern for the public welfare.
The order of the District Court quashing the subpoena is reversed and the matter is remanded for further proceedings not inconsistent with this opinion.
So ordered.
Miss Betty H. Olchin, of the bar of the Cоurt of Appeals of New York, pro hac vice, by special leave of court, Cristobal,
Miss Margaret M. Farmer, Atty., N. L. R. B., with whom Messrs. Stuart Rothman, Gen. Counsel, N. L. R. B., at the time the brief was filed, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel, Atty., N. L. R. B., at the time the brief was filed, were on the brief for respondent.
Messrs. Arnold Ordman, Gen. Counsel, and Melvin Pollack, Atty., N. L. R. B., were on the pleadings subsequent to remand.
Before WASHINGTON, DANAHER and BURGER, Circuit Judges.
PER CURIAM:
This case was first argued in this court November 3, 1960 when the petitioners, the International Organization of Masters, Mates & Pilots (hereinafter MMP), International Vice President Johnson, and MMP Local 47, asked us to review and set aside the Board‘s cease and desist order which had outlawed a secondary boycott. Petitioners had been engaged in a dispute with the Shipping Federation of Canada over alleged discrimination in the hiring of American pilots on foreign-owned vessеls operating on the Great Lakes. The Board had determined that MMP and its Local 47 as agent of MMP had picketed Federation vessels as they engaged in loading or unloading in American ports. The Board asked us to enforce its order.
Deeming the record before us inadequate, we entered our order of December 20, 19601 remanding the case to the Board with the request that specific findings be made in certain respects. As of November 6, 1963, the Board renewed its prayer for enforсement based upon a Supplemental Decision.2 Once again, we insisted that the Board deal specifically
Thereafter as of February 28, 1964, the Board transmitted its Second Supplemental Decision3 with respect to which we invited and the parties submitted detailed memoranda. Now, in light of the record as thus completed and after consideration of the contentions of the respective parties, we agree with the conclusion of the Trial Examiner, as adopted by the Board, that MMP is a “labor organization” within the meaning of sections 2(5) and 8(b) of the Act, as amended. Moreover we are satisfied that the Board could correctly find, as the General Counsel had charged, that Local 47, International Vice President Johnson and MMP, all petitioners herein, were intimately and jointly involved in the illegal secondary boycott. We are not persuaded that we should disturb the Board‘s conclusion that Local 47 was an agent of MMP. Accordingly, the petition for enforcement will be granted, and the petition to review and set aside the Board‘s order must be denied.
The background for our determination had its origin in the General Counsel‘s complaint4 against the petitioners that picketing activities on or near the docks in Chicago, Milwaukee and Cleveland were in violation of section 8(b) (4) (A) of the Act, as amended, 61 STAT. 141,
The Trial Examiner, in his Intermediate Report,6 determined that peti-
In their petition to review, the petitioners did not contest the finding that their activities in Cleveland would constitute unfair labor practices if engaged in by a “labor organization.” Petitioners contended only that the Board had erroneously concluded that MMP was a “lаbor organization.” The Trial Examiner had recognized that “the unfair labor practices proscribed in section 8(b) (4) (A) of the Act may be committed only by a ‘labor organization or its agents’ * * *.”8 He pointed out that the Act, in defining the term “labor organization,” laid down two tests as determinative.9 Petitioners had acknowledged that MMP existed for the purpose, in part, “of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” In addition the Examiner concluded, MMP was also an organization in which “employees” participated because: (1) petitioners had agreed that the members of MMP Local 3 (Associated Maritime Workers) were “employees” within the meaning of the Act; (2) the Board had found MMP to be a labor organization in Standard Oil Co., 121 N.L.R.B. 208 (1958), enforced sub nom Nat‘l Marine Engineers Beneficial Ass‘n v. NLRB, 274 F.2d 167 (2 Cir. 1960); (3) MMP had conceded in prior cases that it was a “labor organization”10; and (4) the requirement that “employees” participate did not mean thаt the workers involved in the particular dispute before the Board had to be “employees” but, instead, meant that a union was a “labor organization” if the members of any local fitted the category of “employees.” Because of this conclusion, the Examiner found it unnecessary to determine whether the pilots themselves were “employees” within the meaning of section 2(5).
The petitioners, on brief, contended here that the Examiner, and thus the Board, erred in deciding that MMP was a “labоr organization.” They argued principally that MMP could not be held responsible for an unfair labor practice as a “labor organization” unless the pilots for whose benefit the secondary boycott had been effected were themselves “employees.” Again, it would be particularly unfair in this case to focus attention on the status of members of Local 3 because that local represented such a small percentage of the total MMP membership and was affiliated with MMP in only a limited capacity.11
In sum, petitioners would have it that MMP was a “labor organization” insofar as the activities of Local 3 were involved but not such an organization when operating on behalf of its other locals. Both the Board and the courts, moreover, had refused to extend to MMP the benefits of the Act when it was representing the interests of non-employee members. See Wilson Transit Co., 80 N.L.R.B. 1476 (1948); Wyandotte Transportation Co., 67 N.L.R.B. 930 (1946), enforcement granted, 162 F.2d 101 (6 Cir. 1947), only later to be denied on rehearing, 166 F.2d 434 (6 Cir. 1948), after the Taft-Hartley amendments had become effective. Finally, the “admissions” by MMP that it was a “labor organization” in such cases as J. W. Banta Towing Co., Inc., supra note 10, were not in fact admissions and, if they were, could not be relied on by the Board in the present context. See Nat‘l Marine Engineers Beneficial Ass‘n, etc. v. NLRB, 274 F.2d 167, 172 (2 Cir. 1960).
After oral argument, we reached the conclusion that neither the petitioners nor the Board had been quite correct in their respective analyses of the issue as to whether MMP was a “labor organization.” It was clear enough that only a “labor organization or its agents” could be held liable for a violation of the secondary boycott provisions. Section 2(5) of the Act is also specific in requiring that a “labor organization” must be one in which “employees” participate. Although the term “employees” is broad, section 2(3) excludes certain classes of workers from this category, and the petitioners contended accordingly that pilots fell within the category of “independent contractors” or “supervisors.” Since the wrongful acts found by the Board to have been committed on the Cleveland docks were committed only by non-“em-
In Di Giorgio Fruit Corp. v. NLRB, 89 U.S.App.D.C. 155, 191 F.2d 642, 28 A.L.R.2d 377 (1951), cert. denied, 342 U.S. 869, 72 S.Ct. 110, 96 L.Ed. 653 (1951), we held that the word “employees,” as used in section 2(5) to define “labor organization,” was not itself to be defined in its generic sense. It was to be given only the meaning attributed to it by section 2(3) when the question before the court was whether a given organization was subject to the restrictions of the secondary boycott provision. In that case we decided that a union local composed entirely of agricultural workers was not a “labor organization” because this class of workers was specifically excluded from the definition of “employees.” But that case was not controlling here. After all, the conclusion that a local which contained no “employees” was not a “labor organization” did not apply to an International which admittedly had some “emрloyee” members. In Di Giorgio the statute by its own terms did not apply; here, assuming alternatives were open, we were necessarily forced to select the more appropriate construction in light of the purposes of the Act.
In that approach, we were persuaded by the reasoning of the Second Circuit in Nat‘l Marine Engineers Beneficial Ass‘n v. NLRB, supra page 774, a case almost identical to our own and involving the same union. There the court held that the Board did not err in finding that MMP was а “labor organization” and, thus, could be guilty of unfair labor practices under sections 8(b) (4) (A) and (B). We agreed with Judge Friendly that the Board was warranted in looking to12 the entire membership of the union charged with a violation of the secondary boycott provision in determining whether or not that union was a “labor organization.” Nothing in the Act or its legislative history precluded such an interpretative approach. A local composed entirely of supervisors could not be a “labor organization,” as we have seen. But it is not inconsistent to hold the parent responsible as a “labor organization” if it be an organization in which “employees” otherwise have participated, despite the fact that the parent may have engaged in the illegal activities solely for the benefit of its non-“employee” local.
It may well be, on the other hand, that a collective bargaining agreement entered into by MMP on behalf of Local 47 would not be within section 301 of the Taft-Hartley Act, 61 STAT. 156,
Since the Board had deemed it unnecessary to make findings of this nature, we adopted the suggestion made by counsel for the Board and remanded the case. So it was that in our order of December 20, 1960,15 we directed the Board to review the entire case in light of the order and to make specific findings with resрect to (1) whether the members of Local 47 included in substantial number or proportion persons who were “employees” and whether such “employees,” if any, participated in the Local and in MMP in a substantial and meaningful manner; and (2) whether the members of MMP included “employees” in such a relationship.
The Board responded to our order in a Supplemental Decision of October 23, 1963 based on facts stipulated by the parties.16 Thus the record was caused to show and the Board аccordingly found that there were approximately 170 “em- ployees” in MMP, all members of Associated Maritime Workers’ locals (1½% of the total MMP membership); the relationship of these locals to the parent union could be determined by the provisions of the MMP constitution; except for 12 workers who were pilots, Local 47 contained no “employees“; and finally, it had been stipulated that the Board should decide the status of these 12 pilots. The Board found that the number of “employеes” in the Associated Maritime Workers’ locals was not insubstantial in relation to the total membership of MMP and that the participation of these locals in MMP did not lack substance or meaning. It found it unnecessary to determine the status of the pilots because they numbered only one-tenth of one per cent of the total MMP membership and were, therefore, insubstantial. The Board concluded by urging on us, once again, approval of the broad rule it had adopted in its 1959 decision.
When filing the Supplemental Decision with the court, the Board on November 6, 1963, renewed its petition for enforcement. The petitioners thereupon contended in their answer that the Board had not complied with our order in that it had failed to determine whether the pilots were “employees,” whether they represented a substantial proportion of Local 47, and whether they participated in the affairs of Local 47 in a substantial and meaningful manner. We agreed with the petitioners аnd again remanded by order of January 31, 1964 directing the Board to make additional findings in the required respects and
Thus, finally we were in position to turn to the issues presented by the Board‘s two Supplemental Decisions. First, we will now affirm the finding of the Board on the first remand that MMP is a “labor organization.” Even as we do so, we observe that this characterization of MMP as a “labor organization” means simply that that entity, as presently constituted, is such an organization for all purposеs under the Act. In other words, the use of the term “labor organization” in any section of the Act must apply to MMP unless some further language of the section or its legislative history indicates a contrary result.
There is ample evidence on the record to support its conclusion that the number or proportion of “employees” participating in MMP at the time of the activities in question was not insubstantial and that they participated in the parent union in a substantial and meaningful manner.
Next, we must uрhold the finding by the Board that the pilot-members of Local 47 are not “employees.” Neither party contests this finding, and it too finds support in the record and in other court cases. See, e. g., Local 28, Internat‘l Organization of Masters, Mates & Pilots v. N. L. R. B., 116 U.S.App.D.C. 110, 321 F.2d 376 (1963).
Finally, we turn to an issue (not raised by the petitioners until after the first Supplemental Decision) as to whether Local 47, with no “employee” members, may be held liable for a violation of section 8(b) (4) (A) as an “agent” of MMP. We answer affirmatively, as did the Board. It would be anomalous indeed to hold that MMP may be liable for the secondary boycott but that its picketing Local 47 though acting as its “agent,” may not be. See Nat‘l Marine Engineers Beneficial Ass‘n v. NLRB, supra page 774, 274 F.2d at 170-171. This conclusion in no way derogates from the position expressed in the Di Giorgio Fruit Corp. case, supra. We realized there that an expanded definition of the word “agent” could result in a virtual negation of the rule that a union with no “employees” was not subject to the secondary boycott provision. By the same token there may be many situations where an alleged joint venture or agency status is more apparent than real. Between such extremes it well may be that in cases which seem to fall within the instantly presented category, the Board should devise and apply a stricter doctrine of agency. Certainly to be avoided would be a rule which might seem without more, to bring all locals of this nature within the prohibitions of the Act involved here.
Our record now presents no problem on any such score, for we are bound to note that here the petitioners have not contested the Board‘s finding that, as a matter of fact, Local 47 and MMP were intimately and jointly involved in the illegal secondary boycott.18 That finding is in strict accordance with the teaching of the Court as to what constitutes an “agency“:
“[W]hen any number of persons associate themselves together in the prosecution of a common plan or enterprise, lawful or unlawful, from
the very act of association there arises a kind of partnership, each member being constituted the agent of all, so that the act or declaration of one, in furtherance of the common object, is the act of all, and is admissible as primary and original evidence against them.” Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249, 38 S.Ct. 65, 72, 62 L.Ed. 260 (1917).
Absent a challenge to the Board‘s finding on this final point, we are not now disposed to disturb the Board‘s conclusion that Local 47 was an “agent” within the meaning of section 8(b).
Petition for enforcement granted; petition for review denied.
WASHINGTON, Circuit Judge (concurring in the result):
The Board found that petitioners had violated one of the secondary boycott provisions of Section 8(b) (4) (A) of the Act, as amended,
WASHINGTON
Circuit Judge