*4 duplicate upon offenses which build Waldman, City York & New Waldman law, should be reluctant state courts Seymour Waldman, (Louis M. Waldman beyond expand the offenses defined Markson, City, York Martin New requirements clear of the terms counsel), appellant. statute.” Lumbard, City York Edward New J. George Bauman, Bailey, (Arnold necessary H. New to con- We not found appellee. counsel), contentions, City, York sider of those since either ground. we rest our decision on another HAND, FRANK, Before SWAN and argument principal Judges. 2. Defendant’s Circuit “representative not a that he was Judge. FRANK, meaning employees” Circuit within the of Sec- reasoning 302(b). His tion is as follows: correctly 1. Defendant asserts (or 501(3) provides was no evidence extortion Section there argues Accordingly, Act, like). he thus: “when used this term ‘representative’ to the enactment of is to have same Previous Section 302 The references National Act clearer in 61 Labor Relations Stat. 136-162 than 29 U.S.C. meaning subsection, however, Nation- when in the used That is not statutory al by amended Labor Relations Act as an island a con “repre Na- this Act.” Section 2 of the tinent. To understand the words Act, any employees” tional amended, provides that, as thus Labor Relations sentative of in Subsec (b) used when tion of Section we must look Act, amended “term 501(3) Section instructs us ‘representative’ “representative” includes individ- in Section has organization.” ual or labor U.S. the same “as when used 152(4). C.A. § National Labor Relations Act as amend * * Throughout ed In N.L.R.A., of that as thus ‘representatives’ amended, “representative” used, we find the “term organi- includes individual or labor reference thereby “repre- zation.” employees, art, We learn what as a word of solely organization sentative” includes. To mean understand what labor means, (or desig- “represen- individuals) with reference to a individual employees,” majority tative of nated of the em- we must heed *5 ployees, 501(3) appropriate unit, many Section in an and turn as sec- bargaining represen- their tions exclusive amended where N.L.R.A. “representative” tative. is so used.5 We discov- invariably “rep- er that there it means a interpretation “represen- This by majority resentative” selected a of the 302(b) tative” in is in Section com- employees, appropriate unit, in an as plete primary pur- accord bargaining representa- their exclusive pose Congress enacting Sec- (Only otherwise, tive. once is used it i. entirety, e., tion 302 as an ren- i. e., 2(1) defining “per- where, in Section der unlawful the creation of union son,” “legal represen- the Act includes a welfare funds restricted as unless tative”.) question The then arises provided (5). 302(c) in Section whether an “individual” ex- can be an bar, union, ILA, In the case at a bargaining representative. clusive Clear- bargaining repre- was the exclusive ly he Labor in- can. The Board has so Consequently, sentative. here Sec- terpreted Act.6 302(b) apply tion could to the union only, not defendant who was but nothing exception in the clauses We see representative representa- a of the 302(c) at at odds de- of Section all tive, e., i. of the union. (2), (4) Clauses fendant’s contention: Accordingly, defendant vi- did not obviously (1) (5) are not. Clauses 302(b). olate Subsection (3) apply to an individual government, The hand, on the other agent bargaining is also an exclusive “representative” contends that in Sub- “representative.” himself a —and thus 302(b) given section every- must be significant when, in think it We day, commonplacemeaning; that, there- to refer to 1947 wanted fore, it includes a of a acting union, spoke it individuals union; and that defendant comes within “representatives” of of them not 302(b) If definition. Subsection “agents” organization,” “labor but as alone, stood that contention would be highly persuasive.4 organization; 8(b) an see such Section If, however, accepted interpre- Pottery we Robinson-Ransbottom 6. See The tation, ; Company, (1940) would have NLRB 1093 we to consider de- 27 The argument Sanitary Wiper point Company, Inc., fendant’s noted in I Louisville opinion. (1945). this NLRB These cases arose before under the N.L.R.A. its amendment 2, 7, 1, 8(a) 8(a) (3), (5), 5. See Sections 1947; amendment but did not 8(b), 8(b) (4), 8(d), 9(a), 9(b), 9(c) statutory change “repre definition of (1) 9(g). sentative.” group having authority N.L.R. the amended em-
-f-61 141 —of Stat. ployees Act. A;, employer.” the 1947 deal with added their subsection government- 3. The makes much of every argues government that, The legislative history. But, far so “representative” used is instance where illuminates, strongly support it tends designate a in the amended N.L.R.A. appears defendant’s This contention. employees, “representative” the word following: from the “bargaining” qualified the word is 9(a).” A phrase “subject forerunner to Section 1947 Act (B) Bill, reported 4908, so-called Case H.R. That not true: Section Representa- 8(d) on the 141-142— floor House and Section Stat. —61 28, Cong.Rec. January (92 em- tives “representative of his on use words ' 490). House, “representative passed ployees” After this bill February 7, (Cong.Rec. 1069, qualification, and on ployees” without 7, 1118), 137, reported Committee and Section Senate Stat. April 15, May “representatives 140, speak on 1946. On 61 Stat. choosing”. Byrd Senator submitted an amendment of their own (92 Cong.Rec. 4809) entitled “Restric- suggestion following further Payments Organiza- tions on to Labor defined in Section advanced: As Byrd (except tions.” This organization” N.L.R.A.,6a “labor “representative” the definition of only interpreted be. cover can infra) substantially noted the same bargaining agent also exclusive present Bill, Section 302. The Case *6 any any group what- or either individual including Byrd amendment, the was give any employees author- ever whom passed by Congress by but was vetoed their, employer ity “concern- deal President, failed to labor, wages, ing.: grievances, disputes, overrule the veto. employment, or pay, of of. hours rates later, year of com- One Accordingly, of work.” conditions con- prehensive then under labor bill “repre- Section-2(4) provides that since sideration, similar to the an amendment “any or individual include sentatives” Byrd -in the was introduced amendment organization”, an labor individual passage. of The Senate House but failed bargaining agent can not an exclusive is reported com- out the Labor Committee “representative:” be a any such prehensive labor bill without suggestion reject these We However, five members of amendment. straining of (1) It -involves a reasons: including Committee, Taft Senators language 2(5) to of Section Report Supplemental Ball, filed a organization,” normal- which term “labor report) (to in which Committee’s body group, ly imports or a collective quite they urged an amendment like the important, More cover an individual. year. previous Byrd of the amendment organization” in- an includes if “labor May 7, 1947, Ball, for him- Senator On 2(4) word dividual, uses the then Section Senators, introduced, three other self and says redundantly when it “individual” (93 Floor amendment on the Senate “any -in- “representatives” include Cong.Rec. adopted 4667), and it organization.” For the labor or dividual bill. 302 of the Senate Section interpretation of Section suggested read,-in effect, amendment, thus: Byrd would cause Like the (a) ‘representatives’ Senate, adopted term include “The included the following (g): (b) or an individual or subsection an individual which, purpose, 6a. in whole for the This reads as follows: “The exists subsection organization’ part, dealing means or in of term ‘labor or- concerning grievances, disputes, any kind, any agency ganization labor wa- or or employment, ges, representation pay, hours rates .of committee or. plan, participate work.” or conditions of in which and: concerning Byrd section, purposes of this “For the Congress, previous were devoted in the ‘representative’ means term regulation subject which, of union organization in- or labor They pur- show that this sec- welfare funds. who, or authorized dividual prompted by demand tion was deal with ports to be authorized an em- or United Mine Workers Union employer, of two on behalf concerning ployer to a welfare fund employees, contribution more his coal, wages, per 10j5 ton of a fund administered disputes, grievances, labor no restrictions employment, the union alone with pay, hours rates following work; state- on its discretion.7 The for the or conditions Ball debates on the ments purposes 301 includes of section illustrative: organization which amendment are or fund representa- officers are some of the President, Ball): (Senator “Mr. or- of a labor members tives are pending with so-called amendment deals appoint- ganization or are elected becoming funds, in- welfare are representative.” negotiations ed creasingly prominent be- * * * employers. susceptible tween unions and definition was This President, purpose of the sole “representative” in- Mr. interpretation prohibit Ball, welfare ex- amendment a union official. Senator cluded funds, (93 (g), make sure that paragraph, said plaining that ”* * * legitimate (93 (g) trust Cong.Rec. 4678): funds. “Subsection Cong.Rec. 4678). ‘repre- simply of the term a definition section, which is in the sentative’ as used (Senator Byrd): amendment] “It [the required different somewhat pro- purpose, specific which is has a ‘representative’ in the the definition requiring unions from hibit the labor Relations Act.” National Labor paid the trea- funds to be welfare into Cong. (93 Committee, labor unions.” suries Conference But the Joint 4678.) between Rec. differences which ironed out the *7 significantly bills, House and Senate the (Senator Taft): “The of the occasion instead, and, add- that definition omitted by Unit- the demand amendment was “representative” the list to the word ed that a tax Mine ed Workers America by defined Section of terms mined, ton levied on all coal be 10?! having when used the same paid into a that the tax levied be and form, In this N.L.R.A. in the amended general to administered welfare fund be passed houses both bill any purpose by practically union for Presidential veto. over a was enacted within the union considered to come * * * purpose The term ‘welfare.’ Conference Commit- the Joint Before require Ives, change, in that the amendment made that Senator tee ;“***i*** in definite de- debate, fund shall be established had said * * * * purpose (b) is to point The to section tailed form. like to *. should prevent inquire could the abuse welfare funds. whether that I wish * * * affecting is, effect, any way in Christ- This construed of, birthday any- prevent presents provision the abuse pi*esents or mas language by right type. thing such funds collec- to establish that The ”* * * bargaining. Cong;. (93 appears bi’oad, me to be tive and it rather Cong.Rec. 4748.) 4746-47). vague.” (93 Senator Rec. member a Senate later was Ives 1126, Supplemental Sen.Rep. on S. which made Committee Conference Joint Ball, (Senators Taft, Views, p. Don- change. Jenner, Smith): nell, H. Alexander Congressional on Abuse Welfare Funds. “Limitation * * * debates and of the Most necessity concerning for the amendment The reports Section Committee organizations. to labor awas limitation on check-offs 7. Also discussed employers employees of the by last made the demand was made clear who contribute them and year Mine United on of the * *” * degenerate into bribes. shall * * * Workers. many cases I have heard government points iso few to a The relin- in which unions have even Supplemental expressions in the lated wage quished in order to demands during Report the debates per- welfare fund with secure a indicating 1947,8 in 1946 302(b) may Section centage payroll paid into the have intended been established, welfare fund (2) to apply representatives and to union agreed frequently ployers “ex relative cover extortion. Those Cong.Rec. (93 procedure.” characterizing tortion” read as can be (1947.) made as those such demands on significant any event, fact In by the es the United Mine Workers expressions occurred before that all those unregulated trust union tablishment of de- had the Joint Conference Committee (93 Taft funds. Thus when Senator (g) paragraph leted Section Cong.Rec. 4746) case mentioned “a defining “rep- (above quoted) separately repre the union extortion or a case where resentatives,” and had substituted employer,” shaking sentative is down 501.10 definition now contained suggests in mind he had the context alleged practice unions of of some “rep not a defendant was Since bargaining rather own benefit for their as we resentative” within Section than for the benefit interpret it, we reverse with directions they represented. unions would These to dismiss on merits. gain employer pressure to exert marked Reversed. fund; contributions to an uncontrolled then funds would it was said that such Judge HAND, (dissenting). Circuit funds. or strike used as union “slush” Chap- my say, 142(3) of As brothers grant employer contribu of such 29, U.S.Code, part of which is Sub- ter accepted tions, urged, would be it was “Labor-Management chapter Re- I of the price collective bar the union of a as the term, 1947,” defines lations “representative,” gaining agreement of other bene in lieu to its use reference should have re fits the workers Subchapter II—the National Labor expressed Sena ceived. This fear was “labor or- It also defines Relations Act. introducing amendment, Ball, his tor Although ganizations” way. in the same as follows: *8 repeatedly word, “representative,” is the President, purpose Subchapter II, of “Mr. the sole I can find no defi- used in prohibit anywhere except is not that 1Í52 the amendment of § nition it funds, “any says make sure that (4) but to includes individual welfare they that it funds, legitimate organization”; used trust which are or labor actually specified the benefits that for the Act understands follows that Many from'Senators them emanated Conference Committee re- of The Joint 10. defeating ported interested Sec- the bill that Section Senate witnesses or clarifying adopted minor with tion 302. “was changes.” see conflict between We no Report (1946) Supplemental 9. said: significance the we have attached to makes extortion ille- “The gal.” changes Committee and the made that description changes report’s of those as Cong. (93 Ree. Taft Senator gen- For, in relation “minor.” spoke 4746) or “a case of extortion regula- purpose of section —the eral union where the case chang- funds—the union welfare tion of shaking employer.” is down only import, and if the es are little applied pay- to other is kinds of they importance. assume ments do may payments employees “representatives” be which it would fall without organization.” (a) (b). within subsections Sec- and Subsec- than a “labor organiza- (c) (5) (4) (c) tions “labor and are indeed defines a tion organization payments union, “any kind” confined to made to a tion” group I and think (which require of in- that the same is true of sub- I take to (c) although agency (2), quite dividuals) or section that “or plan, in so certain. hand representation or On the other subsec- committee (c) (1) (e) presuppose employees participate tions and that and which payments pocket purpose, in covers into the whole or § exists use; dealing of a union own concern- official for his be- part, of cause, since, said, ing wages, just pur- grievances, disputes, as I have labor pose employment, (c) excep- pay, of subsection is to or state hours of rates (a) suppose preceding tions to the I should subsections conditions of work.” that, (b), payments and that as in contrast subsection read as it should be (a) (c) (b) “any organization any kind,” covers would fall and this within except language exception. Hence, for the an individual sub- last would include (a) (b) payments give authority employees sections cover do to whom deal treasury, employer. not made into I can- the union with their Therefore but di- rectly saying “representative,” escape to a who not see that a need single organiza- any authority person may not himself have be a “labor whatever negotiate ; may so, and, if be “in- for the union. The tion” then there accused “representatives” only answers that who these subsections are dividuals” are protect those, may yet negotiating and who are not authorized be negotiate union, wages Hence, they employers. for the I when take their denying ordinary see can no reason for what to me market transaction “representa- employer. “repre- with the natural So far the bargaining tive,” any official, only sentatives” which would are cover agents president, union, of a at rate a union. Of construction might only cautionary, makes confined course still be subsections treasury, objection payments that, and does union not answer made into the only they exceptions, not they that must are but other reasons than called but they “representa- indiscriminately payments are to a are mixed with agree exceptions. I of that the indubitable tive.” course section On the other hand, payments if excep- does cover sury the union are into trea- treated true (as (subsections they may (c) (c) (5) tions confined if to cas- go negotiators prove that), es where the but the accused must individual further, does; argues union) although for he themselves that the the for- difficulty payments avoided, mal section covers no those the occasions on negotiation made apply course to which the subsections would are so bargaining agent of the union for the much reduced unlikely it is most premise, I union. But start with thought would have that, definitions, so far as concerns *9 there provide worth while to for them. It why no is reason should not we under- very rarely must that true one or two ordinary sense; the in stand word or three individuals in are fact a “labor certainly is and it that the irrelevant Act organization” ; substantially and it example, init most uses instances —for impossible, Congress submit, I that would 158(d) in limited sense. § possible —in have deemed the accumulation organi- the union funds of of “labor such go However, further, I because I find appreciable an (c) zations” foregoing evil. For in that the evidence subsection it does I officials, though reasons do not they think not exclude union engaged bargaining. not in there is the least That textual reason to confine provision payments excepts is the 186 to “repre- subsection to union made § treasury history question sentatives”- union as a Last is into-the the (cid:127) Congress. negotiations. passage through bargaining the section’s result principal discussion was indeed said, As I one of have that was indeed about to a union’s trea- contributions objects par- and it was sury; and that was true as well of the ticularly Congress present in the mind of Bill,” predecessor “Case of the Act —the time, at 1947 the “Mine Work- before us—as of the Act' itself. The attempting ers Union” was to collect a pre- absence much discussion about large “war chest.” that does not But venting prose- the kind of offence here prevention mean .that of such accumula- cuted, surprising; seems to me not at all only object of tions was the the Act. it, opposition there could have been no Moreover, in order to affirm the convic- except might that in made: it cover fact necessary suppose tion it not payments. Besides, ques- innocent against bribery 186 was directed § wholly escape tion here at did not issue officials, although, right, union if I am Take, example, notice. what Sena- certainly bribery. (Inci- it does cover is, 186(a): tor Taft said about “That § dentally, bribery target, if had been may said, it in a case where the union would, certainly penalty have almost shaking down the year’s imprisonment.) been more than a ployer.” Or Ives’s in- consider Senator altogether adequate purpose, and one An quiry con- whether “could be § diffi- involve the textual which does not way affecting strued in as Christmas have-discussed, in addi- is that I culties anything presents, birthday presents or help- employers preventing from tion to Pep- type.” of that Both he and Senator chest,” ing “war fill a union’s against bill, presumably per voted tamp- prevent wished they thought that for this reason because officials, loyalty ering union with the forget I do not that the it went too far. levying disloyal officials union defining “representative,” was section employers. upon The first tribute specific 142(3), than at that time more § bar; employer did at the situation .eventually supplanted it accused; con- has which it did what not bribe mind, ference; one makes done, when but the amendment out time been likely knowing against person, he is to have than his the accused rather another, dealing favor, continuous if we treat subsections acting person will be incorporated the second 142(3). 152 as § § friendly fiduciary, insure a wishes although supplanted For, did -section fiduciary; makes approach to the “individual,” as well as the word contain favors, or in him presents or does him organization," limited it it an “labor palpable forms tries to less be, was, who claimed to “individual” ' allegiance. edge Al- of his employer; turn with an to deal authorized grosser only though with the so, 186 deals do I does not have and § evil, presupposes more of this forms said. fiduciary ordinary A un- defection. than However, if the debates threw even loyalty: first, he a double has ion official light on the than do more union, his members it to owes words, accept I should hesitate them; next, represent him to chosen gloss. It is one authoritative them employees, who are to those he owes thing purpose look for that to the re- members, in favor whom ports of one both Houses of *10 imposed on him an Congress; nevertheless has law for it not unreasonable to altogether Surely, duty.' members, it was equal those who are not believe put speak should wish to to let the words likely content them- may upon parties— selves, report have both relied such abuses ah end authoritative; employers. and in event that unions
427 hand, the other law.1 On is well settled although Bernard Mitchell WOLFE and Frederick re- courts have true that it is Dannenfelser, J. Individuals Co- at- peatedly the debates mentioned Doing Partners Business Under passage as relevant of a bill tended Styles, Name and “Dutch Paint Co.” interpretation, are so the decisions “Manning-Mitchell Ap Co.,” Paint impossible find it that I much at variance pellants, principle. The words safe to extract v. presumptively sponsor of bill are COMPANY, NATIONAL LEAD a New although considered,2 entitled to be Jersey Corporation; E. I. du Pont de who impossible how far those to know Inc., Company, al., Ap Nemours and et may faith acted on the for it have voted pellees. gen- them; made in the remarks No. 13966. not to count.3 eral debate are Appeals United States Court of question indeed remain the There does Ninth Circuit. Pep- by Senator Ives and Senator raised 27, June 1955. e., per 186 forbids a Christ- : i. whether § present union official mas to a Rehearing 22, Aug. Denied 1955. relative, friend, or even a chances to be a always employer. draw lines is To way difficult; to miss one sure and the to read the of a statute is you out of their context and words dictionary. Nearly find them penumbra, every and this statute has its exception; but it would be is not an
one defeat a of its
most unreasonable priori
purpose, is no a rule there because deciding payment purely when a
donative, was actuated and when it possible to come.
prospect of benefits prevail, my I shall view is not As objections that the discuss the
not say raises, except to that I have accused them, and that considered any error was com- me that
convinced justify a reversal. I that would
mitted conviction. affirm
would
States,
486,
443, 474, 475,
supra,
194 U.S.
254
41
v. United
U.S.
S.Ct.
Binns
1.
1087;
McCaughn
Hershey
816,
172;
495,
L.Ed.
La
v.
Chocolate
24 S.Ct.
48
78, 90,
488, 493, 494,
510,
Williams,
Co.,
pina
232
34
51
U.S.
S.
283 U.S.
S.Ct.
v.
515;
1183;
196,
L.Ed.
United
United
v.
58
States
75 L.Ed.
States
Great
Ct.
Ry.,
Ry.,
144,
310,
154,
Paul,
155,
& M.
247
Northern
287 U.S.
M.
U.S.
St.
v.
223; Wright
1130;
28,
525,
318,
L.Ed.
Du
53 S.Ct.
77
v.
62 L.Ed.
S.Ct.
38
supra,
Printing
Deering,
Branch,
440, 463,
plex
300 U.S.
Press Co. v.
254
Vinton
556; Schwegmann
475,
172,
443, 474,
464,
41 S.Ct.
S.Ct.
Broth
65 L.
57
U.S.
Corp.,
349; Wright
Branch,
supra,
etc.,
Vinton
Calvert Distillers
341
v.
ers v.
Ed.
395,
556,
394,
440, 463, 464,
384,