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DONOVAN v. MASTER PRINTERS ASS'N

United States District Court, Northern District of Illinois, E.D


December 10, 1981

RAYMOND J. DONOVAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF,
v.
MASTER PRINTERS ASSOCIATION, A DIVISION OF PRINTING INDUSTRY OF ILLINOIS ASSOCIATION, DEFENDANT.

The opinion of the court was delivered by: Marshall, District Judge.

MEMORANDUM OPINION

This case involves a challenge to the Secretary of Labor's ("Secretary") interpretation of § 203 of the Labor Management Reporting and Disclosure Act ("LMRDA" or "Act"), 29 U.S.C. § 433 (1959). The Secretary seeks to compel defendant, Master Printers Association ("Association") to disclose the names and various aspects of its relationship with clients who receive labor relations advice from the Association. The Association contests the Secretary's interpretation of the Act and alternatively raises several constitutional objections to the disclosure requirements. Both sides have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.Pro. and exhaustive briefs have been filed. The records and files of the case present no genuine issues of material fact and the case is ready for decision.

I

The facts are not in dispute. The Association is an unincorporated trade organization comprised of approximately 800 non-union printing shops. The purpose of the Association is, in part, to counsel and advise its members on how to keep their employees unorganized. To this end the Association provides a variety of services for its members, including literature, meetings and counseling on how to maintain "open" shops, and establishing credit unions and other benefit programs for the unorganized employees. Affidavit of Robert Lindgren, Exhibit D.

In 1976 the former executive director of the Association made three separate speeches directly to employees of three of its member employers. The Secretary, pursuant to Title II of the LMRDA, Section 203, 29 U.S.C. § 433(b), determined that these speeches constituted "persuader activity" within the meaning of the Act and therefore ordered reports and disclosure of the relationship between the Association and those employers. In addition the Secretary ordered the Association to report the names and disbursement records of all other employers who had received labor relations advice regardless of whether they received persuader services. The Association filed the required reports for the three employers, but refused to comply with respect to its other member-employers. The Secretary instituted this action to compel disclosure. The questions presented here are whether the LMRDA supports the broad disclosure interpretation urged by the Secretary and, if it does, whether the reporting sections of the Act can withstand constitutional scrutiny.

II

The LMRDA grew out of the lengthy and well publicized McClellan Committee investigations into organized labor in the late 1950's.*fn1 The legislation which ultimately passed after several years of debate and many attempts dealt primarily with insuring internal union democracy and public disclosure of union financial arrangements.*fn2 In addition, the LMRDA and its precursors, the Kennedy-Ives Bill, S. 3974, 85th Cong., 2d Sess. (1958), the Kennedy-Ervin Bill, S. 505, 86th Cong., 2d Sess. (1959), and finally S. 1555, 86th Cong., 1st Sess. (1959) authored by Senator John F. Kennedy, focused on the influence of "middlemen" employed by management to influence employees in the exercise of their rights under § 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157 (1976). The Senate Report accompanying the Act 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. . . . [Employers] 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. at 10 reprinted in [1959] U.S.Code & Admin.News 2318, 2322-23 (1959).*fn3

It is clear that Congress did not look favorably on the activity of outside consultants and believed they frequently engaged in practices of questionable legality.

    The committee notes that in almost every
  instance of corruption in the labor-management
  field there have been direct or indirect
  management involvements [sic]. The report of the
  McClellan committee describes management middlemen
  flitting about the country on behalf of employers
  to defeat attempts at labor organization. . . .

    The committee believes that employers should be
  required to report their arrangements with these
  union-busting middlemen. Further, the Committee on
  Labor and Public Welfare has received evidence in
  prior hearings showing that large sums of money
  are spent in organized campaigns on behalf of some
  employers for the purpose of interfering with the
  right of employees to join or not to join a labor
  organization of their choice, a right guaranteed
  by the National Labor Relations Act. Sometimes
  these expenditures are hidden behind committees or
  fronts; however the expenditures are made, they
  are usually surreptitious because of the unethical
  content of the message itself. The committee
  believes that this type of activity by or on
  behalf of employers is reprehensible. These
  expenditures

  may or may not be technically permissible under
  the National Labor Relations Act . . ., or they
  may fall in a gray area. In any event, where they
  are engaged in they should be exposed to public
  view, for if the public has an interest in
  preserving the rights of employees then it has a
  concomitant obligation to insure the free exercise
  of them.

S.Rep., supra at 2326-37.

In response to the problems outlined above the LMRDA provides criminal sanctions for improper payments by middlemen to employees*fn4 and requires disclosure of the employer-middlemen relationship. Section 203 of the Act, 29 U.S.C. § 433 (1976), provides in relevant part:

  (b) Every person who pursuant to any agreement or
  arrangement with an employer undertakes activities
  where an 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 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 purpose
  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 arising thereunder.

It should be apparent from reading the Act that the language of paragraphs (b) and (c) requires reconciliation. What the Act requires in terms of reporting obligations in paragraph (b) it appears to exempt in paragraph (c). As one commentator noted,

  There seems to be some confusion, however,
  concerning whether a consultant who has an
  agreement with any one employer to persuade
  employees or to furnish information must then
  include in his annual report receipts from, and
  disbursements on behalf of, all other employers
  for whom he has performed labor-relations services
  that would otherwise not have to be reported. Read
  literally, section 203(b) seems to compel that
  conclusion; 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.

Aaron, The Labor Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851, 891 (1960). It is precisely this ambiguity that we are called upon to resolve in the case at bar.

The Secretary reads § 203(b) to require the reporting of receipts and disbursements for all clients who received any labor relations advice if a labor consultant engages in any persuader activity.*fn5 Thus, the Secretary treats the rendering of persuader services as a trigger which compels full disclosure of information otherwise non-reportable under § 203(c). The sole function of paragraph (c) is to exempt from the filing requirements labor consultants who engage in no persuader services and limit their activity to the giving of advice and the representative functions listed in the Act. A consulting firm must confine itself solely to non-persuader activity unless it wants to incur a duty to make financial disclosure as to all its clients, even those who receive only advice outside the scope of direct or indirect employee persuasion. Plaintiff's Memorandum in Support at 6-8.

The defendant offers several counter interpretations of the Act, urging that it can be best reconciled by restricting the reporting requirement to all labor relations services — including advice — to any employer who receives persuader services, but not to employers who receive only non-persuader services. Defendant's Memorandum in Support at 20-22.*fn6 Defendant argues that this interpretation is preferable because the Secretary's reading of the statute renders section (c) a mere repetition of what is already apparent from section (b). Id. at 23. Defendant further argues that this interpretation is consistent with the Congressional purpose of focusing the "floodlights of publicity" on those who provide persuader services. Only where there is persuader activity — contact between the consultant and employees — did Congress exhibit a concern sufficient to require the report of receipts and disbursements.

Both parties argue that the considerable legislative history accompanying the Act supports their view; and both sides agree that judicial interpretation to date generally supports the Secretary's interpretation of the Act. See 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); Wirtz v. Fowler, 372 F.2d 315 (5th Cir. 1966) overruled, Price v. Wirtz, 412 F.2d 647 (5th Cir. 1969) (en banc). For the reasons stated below, we find that the Secretary offers the proper construction of the Act and as construed the reporting sections do not violate defendant's constitutional rights.

The Fourth Circuit in Douglas, the first case to address the subject reporting requirement of the LMRDA, held, in a 2-1 opinion, that § 203 requires the reporting of all advice given by a labor relations consultant who engaged in even a single instance of persuader activity. The Fifth Circuit initially took the contrary view in Wirtz v. Fowler, but reversed itself, en banc, in Price v. Wirtz.

  The Douglas court recognized the apparent conflict between
paragraphs (b) and (c) and held "[a] reasonable
reconciliation . . . is to compel the reporting of all income
and expenditures in connection with labor relations advice and
services, given or rendered aside from the persuasion
activities, if the [consultant] has within the same reporting
period also either acted or received payment as a persuader
under § (b)(1)." Douglas at 32. The court focused on the "by
reason of" language in section (c) and concluded:


   . . advice in itself and alone does not create
  an obligation to report. But the two sections
  together declare that when persuasion services or
  receipts therefor and independent advice occur in
  the same fiscal year, all of them must be
  reported. Id.

In addition, Douglas relied on passages from two Senate Committee reports which indicate that a consultant who "confines himself to giving legal advice" or other activities listed in 203(c) need not report. Douglas at 33, quoting S.Rep. 187, supra. By using the word "confines" Congress intended that any provision of persuader services forfeited the exemption. Id. The opinion of the Fifth Circuit in Price follows the Douglas reasoning. See Price at 649. The court stated the matter succinctly: "[D]isclosure of all labor relations advice is the price the attorney-persuader must pay if he wishes to engage in those activities." Id. at 650.

Defendant vigorously contends that the Fourth and Fifth Circuit erred in their construction of the Act. We disagree. The Association's principal argument is that the Douglas interpretation renders section (c) meaningless — a mere "truism that the non-reportable giving of advice does not give rise to a duty to report." Note, Two Views, at 756. They also contend that by using the language "an object" in section (b) the drafters indicated disclosure is required only where advice is accompanied by persuasion — i.e. the argument has more than one object. Finally, defendant relies on a number of comments in the extensive legislative history indicating that the main thrust of Congressional concern was persuader activity, not the giving of advice outside persuader agreements.*fn7

Contrary to defendant's argument, our reading of the statute does not render section (c) meaningless. Rather, it stands as a gloss on the potentially confusing language of section (b) and indicates that engaging in the activities listed in section (c) does not, in and of itself, give rise to a duty to report. The opening language of section (c), "Nothing in this section shall be construed to require . . .," supports the view of (c) as a clarification designed to avoid confusion. Moreover, the committee report accompanying the Kennedy-Ives Bill, where the management disclosure requirement originated, states:

    Section 103(b) requires a labor-relations
  consultant to file a financial report upon his
  labor-relations activities if he undertakes to
  influence or affect employees in the exercise of
  their rights guaranteed by the [NLRA] . . . Since
  attorneys at law and other responsible
  labor-relations advisors do not themselves engage
  in influencing or affecting employees in the
  exercise of their rights . . . an attorney or
  other consultant who confined himself to giving
  advice, taking part in collectively bargaining and
  appearing in court and administrative proceedings
  [would not] be required to report. Although this
  would be the meaning of the language of the section
  103(a) and (b) in any event, a proviso to section
  103(b) guards against misconstruction.

S.Rep. 1684, 85th Cong., 2d Sess. (1958) reprinted in Leg.Hist. (Labor) at 390 (emphasis added).

Both parties agree in their briefs that reliance on commentary to the Kennedy-Ives Bill is appropriate because it is similar in content and structure with the LMRDA. Section 103(b) referred to in the quoted comment is almost identical with section 203(c) of the Act. The proviso in the original bill ultimately became section 203(c). Thus, the statement that the exemption is included merely to guard against misconstruction is particularly persuasive.*fn8 Further, we agree with the courts in Douglas and Price that the "by reason of" language is a strong indication that the purpose of section (c) is to avoid any reliance on the giving of advice alone as a trigger for the consultant's duty to report.

Like the court in Price, we believe that the legislative history supports, if it does not compel, this view. Price at 650. Defendant places considerable weight on the statement of Senator Kennedy discussing the predecessor legislation:

    The Senate passed bill contained a strong
  detailed provision requiring employers and
  middlemen to report transactions and arrangements
  as well as payments and expenditures for
  activities intended to influence or affect
  employees in the exercise of rights guaranteed by
  the Labor Act.

Cong.Rec., 19033-34 (1958), reprinted in Leg.Hist. (Labor) at 486. But no one is arguing in this case, least of all the Secretary, with the contention that persuasion is the principal evil addressed by the statute. The question here is the scope of the reporting obligation incurred by one who has engaged in persuader activity. Senator Kennedy's remarks simply do not address that issue.

The defendant also relies on a statement by Senator Goldwater as one of the Senate conferees that § 203 requires "a report from an employer and labor relations consultant of any agreement or arrangement whereby the labor relations consultant undertakes activities to persuade employees in the exercise of their rights." Defendant's Answering Memorandum at 29. But defendant fails to include Sen. Goldwater's description of the content of the report once the duty is incurred:

  First. File a report with the Secretary within 30
  days of entering into the agreement or arrangement
  giving all details concerning it.

  Second. File annually with the Secretary for the
  preceding fiscal year if he received any payments
  pursuant to an agreement or arrangement, a report
  setting forth all receipts from all employers, and
  the sources thereof, on account of

  labor relations advice or services, as well as any
  disbursements and their purposes in connection
  with such services,. . . .

Leg.Hist. (Labor) at 624.*fn9

This interpretation is consistent with the House conferees statement that § 203(c) "grants a broad exemption from the requirements of the section with respect to the giving of advice." Conf.Rep. 1147, 86th Cong., 1st Sess., reprinted in [1959] U.S. Code & Admin.News, at 2505. Given the Congressional findings regarding the propensity of management middlemen to engage in or encourage unfair labor practices, Congress might have sought to require disclosure of the existence of employer-consultant relationships even where the consultant refrained altogether from persuader activity. Instead, Congress did grant a broad exemption, one given its full scope by our interpretation: any consultant or attorney who "confines himself" to giving advice or the representative functions listed incurs no obligation to report. The numerous reports on various versions of the Senate bill ultimately passed by the Congress indicate that the exemption was designed to accommodate those who have nothing to do with attempts to persuade employees in the exercise of their § 7 rights. See S.Rep. 1684, supra, reprinted in Leg.Hist. (Labor) at 394; S.Rep. 187, supra at 2356-57. We agree with the courts in Douglas and Price that once a consultant, such as Master Printers Association, engages in persuasion of employees, they trigger the obligation to report all labor relations advice rendered in that reporting year.

III

The defendant next argues that the Act, if so construed, violates the first amendment rights of the Association and its members. As indicated earlier, the Association was formed, in part, to promote its members' belief in "open" shops. It assists member-employers in the conduct of their labor relations activities. Defendant correctly points out that Congress has specifically provided, and the Supreme Court has held, that employer speech in the labor relations field is protected under the Constitution. See § 8(c) of the NLRA, 29 U.S.C. § 158(c); NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

The Act, however, does not prohibit any speech by either employers or labor relations consultants. Rather it compels disclosure of the financial data and clients of those who engage in a certain type of activity. We recognize that it is well settled that compelled disclosure has the potential to infringe upon first amendment freedoms. See, e.g., Gibson v. Florida Legislative Investigation Commission, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); Louisiana v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). It is equally well settled that disclosure requirements are permissible provided that the chill placed on a person's first amendment rights is justified by a sufficient purpose behind the legislation. California Medical Ass'n v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1975) (per curiam); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

The standard for examining disclosure requirements against first amendment attack was set out and discussed at length in Buckley v. Valeo, where the Court upheld the reporting and disclosure provision of the Federal Election Commission Act of 1971, 2 U.S.C. § 431 et seq. (1976).*fn10

  Since NAACP v. Alabama we have required that the
  subordinating interests of the State must survive
  exacting scrutiny. We also have insisted that there
  be a "relevant correlation" or "substantial
  relation" between the governmental interest and the
  information required to be disclosed [citations
  omitted]. This type of scrutiny is necessary even
  if any deterrent effect on the exercise of First
  Amendment rights arises, not through direct
  government action, but indirectly as an unintended
  but inevitable result of the government's conduct
  in requiring disclosure.

424 U.S. at 64-65, 96 S.Ct. at 656-657.

Defendant contends that both it and its members will be chilled in the exercise of their first amendment rights if forced to disclose the existence of their employer-consultant relationship. Defendant asserts that employers who do not use persuader services are discouraged from associating with those who do because they fear "public opprobrium" resulting from organized labor's campaign to "vilify" management consultants. They also fear that reliance on advice from a consultant might become an issue in collective bargaining and employee relations. Finally, defendant argues that the Association itself is chilled because the threat of compelled disclosure of all clients who receive advice, given their clients' desire to keep their relationship private, keeps them from engaging in any direct contact with employees. Defendant's Closing Memorandum at 22-24. As proof of the reasonableness of these fears defendant points to the affidavit of its past executive director attesting to the fact that since the Secretary's order of disclosure the Association has refrained from all persuader activity. Lingren Aff. ¶ 12.

We are somewhat skeptical of the "fears" claimed by the defendant,*fn11 but even accepting their allegations as true, we do not believe they make out a claim under the first amendment. The Court in Buckley held,

  we have acknowledged that there are governmental
  interests sufficiently important to outweigh the
  possibility of infringement, particularly when the
  "free functioning of our political institutions"
  is involved. [citation omitted].

    The governmental interest sought to be
  vindicated by the disclosure requirements are of
  this magnitude.

424 U.S. at 66, 96 S.Ct. at 657. As in Buckley, the governmental interests advanced by the reporting and disclosure provisions of the LMRDA are sufficient to justify any of the chilling effects alleged by the defendants.

We deal here with the unique and pervasively regulated area of labor relations law. Congress has set out one of the most detailed legislative and administrative frameworks in our history to promote the free flow of commerce and replace the economic warfare of the nineteenth century with a system designed to encourage industrial peace. The Supreme Court has recognized that even first amendment rights may be required to yield to the special needs of the labor relations field:

    Any assessment of the precise scope of employer
  expression, of course, must be made in the context
  of its labor relations setting. Thus, an
  employer's rights cannot outweigh the equal rights
  of the employees to associate freely,. . . . And
  any balancing of those rights must take into
  account the economic dependence of the employees
  on their employers, and

  the necessary tendency of the former, because of
  that relationship, to pick up intended
  implications of the latter that might be more
  readily dismissed by a more disinterested ear.
  Stating these obvious principles is but another
  way of recognizing that what is basically at stake
  is the establishment of a nonpermanent, limited
  relationship between the employer, his
  economically dependent employee and his union
  agent, not the election of legislators or the
  enactment of legislation . . .

NLRB v. Gissel Packing Co., 395 U.S. at 618-19, 89 S.Ct. at 1942-43. The Court has permitted restrictions even on the content of employer speech by classifying as an unfair labor practice statements outside the scope of well drawn boundaries. Gissel, at 618-19, 89 S.Ct. at 1942-43; J.P. Stevens & Co. v. NLRB, 638 F.2d 676, 686 (4th Cir. 1980); Chromalloy Mining and Minerals v. NLRB, 620 F.2d 1120, 1124 (5th Cir. 1980); Nebraska Bulk Transport, Inc. v. NLRB, 608 F.2d 311, 314 (8th Cir. 1979); NLRB v. Gogin, 575 F.2d 596, 600 (7th Cir. 1978).

In a labor setting "the Court has concluded that an employer's freedom to communicate his views to his employees may be restricted by the requirement that any predictions `be carefully phrased on the basis of objective fact'" even though "[s]uch restrictions would clearly violate First Amendment guarantees if applied to political expression concerning the election of candidates for public office." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 778, 96 S.Ct. 1817, 1833, 48 L.Ed.2d 346 (1978) (Stewart, J., concurring). Clearly, the context of the regulation sets the framework for our first amendment analysis. Id. See also Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978).

The reporting and disclosure provisions of the LMRDA are supported by extensive findings of the danger posed by middlemen in the labor relations field. In its declaration of findings, purposes and policy, made part of the statute, Congress stated:

    The Congress further finds, from recent
  investigations in the labor and management fields,
  that there have been a number of instances of
  breach of trust, corruption, disregard of the
  rights of individual employees, and other failures
  to observe high standards of responsibility and
  ethical conduct which require further and
  supplementary legislation that will afford
  necessary protection of the rights and interests
  of employees and the public generally as they
  relate to the activities of labor organizations,
  employers, labor relations consultants, and their
  officers and representatives.

§ 2(b), 29 U.S.C. § 401(b).

The record is replete with evidence that Congress believed that "union busting" management middlemen were working with employers to undermine employees in their attempt to exercise their § 7 rights. Those activities include direct employee contact, spending large sums of money behind the scenes or through committees to distribute distorted information, setting up company dominated unions, and other practices that Congress felt were unethical if not illegal. S.Rep. 187, supra. See also, Cong.Rec. 11374-77, 86th Cong., 1st Sess. (1959), reprinted in Leg.Hist. (Labor) at 561-63. The Senate Committee concluded:

    All of the activities required to be reported by
  this section are not illegal nor are they unfair
  labor practices. However, since most of them are
  disruptive of harmonious labor relations and fall
  into a gray area, the committee believes that if
  an employer or a consultant indulges in them, they
  should be reported.

S.Rep. at 187, supra at 2328. Thus, it appears that the committee was mindful of the advice of Mr. Justice Brandeis, recalled by the Court in Buckley,

    Publicity is justly commended as a remedy for
  social and industrial diseases. Sunlight is said
  to be the best of disinfectants; electric light
  the most efficient policeman.

424 U.S. at 67, 96 S.Ct. at 657, quoting L. Brandeis, Other People's Money 72 (1933).

The fact that persuader contact and advice is not itself illegal is not dispositive. What counts is that Congress found a strong connection between corruption in the labor field and the activities of management persuaders. Similarly in Buckley a vast majority of campaign contributions have absolutely no corrupting influence on the political process, yet the Court permitted compelled disclosure of practically all campaign contributions because "disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributors and expenditures to the light of publicity." 424 U.S. at 67, 96 S.Ct. at 657. Moreover, disclosure serves the purpose of letting the voters know where their information comes from, and last, but "not least significant, record keeping, reporting and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above." Id. at 67-68, 96 S.Ct. at 657-658.

We find that justifications for the disclosure requirements in the LMRDA remarkably similar to those of the Federal Election Commission Act discussed in Buckley. The disclosure permits employees in a labor setting, like voters in an election, to understand the sources of the information being distributed. See also §§ 201, 202, 29 U.S.C. § 431, 432 (requiring extensive reporting from labor organizations and their officers). The annual report serves as a crosscheck on the accuracy of the 30 day reports and serves to notify the Secretary of relationships between a persuader and employer which may give rise to a duty to file a 30 day report. More importantly, as we have outlined above, Congress viewed management persuaders as inherently suspect and their activities subject to abuse in an extremely sensitive field. Disclosure is therefore justified as a means of discouraging potential abuse where there is a demonstrated propensity for such abuse. See United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Marshall v. Stevens People and Friends for Freedom, 669 F.2d 171, 108 LRRM 2024 (4th Cir. 1981).*fn12 Finally, it must be remembered that the evil Congress was addressing was not "persuasion" in and of itself, but the tendency of persuaders to engage in unfair labor practices. Thus, the Act would be less than effective if it permitted the targets of the publicity to be entirely free from public scrutiny where they are able to couch their function as "advice" rather than persuasion. As the Fifth Circuit recognized in Price:

  The legislative judgment that one who engages in
  the persuader business must be subjected to the
  pressure of revealing publicity is amply justified
  by the difficulty in distinguishing between those
  activities that are persuader activities and those
  that are not, and by the opportunity for
  misleading concealment of the true nature of such
  [persuader's] work in situations involving
  intricate corporate conglomerate associates or,
  equally pressing, industry wide labor
  controversies.

412 F.2d at 650.

The Association contends, relying principally on Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980), that while these purposes may justify disclosure of the employers who use persuader services, the Act is unconstitutionally overbroad in so far as it requires reporting of employers who receive only advice. In Familias Unidas the Fifth Circuit struck down a statute requiring disclosure of all members of any organization encouraging interference with the peaceful operation of the public schools. 619 F.2d at 394. The court found the statute overbroad because "the mere presence of an individual's name on an organization's membership rolls is insufficient to impute to him the organization's illegal goals." Id. at 401, quoting United States v. Robel, 389 U.S. 258, 266 n. 16, 88 S.Ct. 419, 425 n. 16, 19 L.Ed.2d 508 (1967). With respect to people without knowledge of the organization's illegal activity "disclosure bears no relationship at all to the state interest in deterring school disruption." Id. at 401.

Defendant's reliance on Familias Unidas is misplaced. The Texas statute in question there contained no legislative history; the court assumed its sole rationale was that

  [b]y raising the spectre of public scrutiny and
  opprobrium for individuals supporting
  organizations engaged in disruptive activities,
  section 4.28 is intended to deter participation
  in, active support of, and affiliation with such
  groups and activities.

Id. at 400. The organizations in question were essentially political with no past history of any illegal or suspect activities. The court took care to distinguish its holding from cases where the "organizations [have] a demonstrated track record of illicit conduct . . ." Id. at 401. See Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961); Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184 (1928). As we have outlined several times, Congress believed that those who engage in persuader services had just such a track record in the sensitive field of labor-relations.

But more importantly, what defendant fails to recognize is that this is not a membership case at all. Merely belonging to the Association does not require reporting. Disclosure under the LMRDA is only triggered by a specific relationship — some type of labor relations contact — with an organization engaged in a suspect activity. By focusing on the employer who receives only advice and no persuader services, defendant has sought to deflect us from the proper subject of the inquiry — the persuader. There are two parties in every agreement which must be disclosed under § 203. While Congress may not have demonstrated a legitimate concern with the employers receiving only advice, it did demonstrate substantial justification for keeping an eye on those who engage in persuader activity — here the Association itself. Thus, unlike the statute in Familias Unidas, the scope of the reporting requirement in the Act is tailored to meet a concern articulated by Congress and supported by a compelling state interest. See California Medical Ass'n, 101 S.Ct. at 2722-23 n. 20.

Finally, the defendant argues vigorously that it does not engage in unfair labor practices or any of the other persuader activities Congress thought were undermining national labor policy; that it is, in short, a good guy:

  The Association has merely promoted its members'
  common belief in the value of open shops in the
  printing industry. It has informed its members of
  new technological, legislative and political
  developments affecting the printing industry; it
  has advised its members of good management
  practices that will prevent employee
  dissatisfaction and inefficiency; it has sponsored
  employee benefits competitive with those available
  through union representation. All of these efforts
  promote better working conditions and industrial
  peace. . . . Yet merely because the Association
  assisted three members by speaking on their behalf
  directly to their employees, without violating the
  law or urging others to violate the law, the
  Secretary now seeks to class the Association with
  the traditional "union busters" . . .

Defendant's Closing Memorandum at 5.

We express no opinion as to defendant's particular labor relations practices. The record before us does not contain information on how defendant advises its clients, nor does that concern us. Regardless of the Association's business ethics, we are not free to substitute our judgment for the clear expression of Congressional intent. Congress deemed the management middleman who engages in persuasion of employees as inherently suspect; that judgment is supported by adequate findings and operates in a sensitive area of great national interest. The Association fits the Congressional definition of a persuader and it must therefore comply with the Secretary's order and submit the required information.

IV

Defendant urges three other grounds in challenging the statute and the Secretary's order. While we have considered these arguments at length, we deal with them somewhat summarily.

The Association contends that the statute is so vague that it violates the due process clause of the fifth amendment. It suffices to say that the Act is only vague because defendant chooses to make it so. The opinion of the Fourth Circuit in Douglas and the Fifth Circuit in Price have stood without any change by Congress in the statute since 1965. While we admit that the structure and language of the Act are not a model in legislative drafting, the consistent construction by the courts leaves little doubt as to the proper interpretation of the Act.*fn13 See Grayned v. City of Rockford, 408 U.S. 104, 109-10, 92 S.Ct. 2294, 2299-2300, 33 L.Ed.2d 222 (1972); United States v. Harriss, supra; United States v. Heilmen, 614 F.2d 1133, 1136-38 (7th Cir. 1980); Amato v. Divine, 558 F.2d 364, 365 (7th Cir. 1977); Sheehan v. Scott, 520 F.2d 825, 829 (7th Cir. 1975).

The Association also argues that the reporting requirements constitute an unreasonable search and seizure in violation of the fourth amendment. It makes the point that reporting and disclosure requirements can violate the fourth amendment if they amount to an unreasonable invasion of privacy and are unrelated to any permissible state interest. See California Bankers Association v. Schultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950).

While commercial enterprises benefit from the protection of the fourth amendment, see Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the privacy interest asserted by the defendant is significantly diminished where, as here, we deal with businesses engaged in operation for profit.*fn14 The Court has recognized that in a disclosure setting "neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret." California Bankers Association, 416 U.S. at 66-67, 94 S.Ct. at 1519-1520 quoting Morton Salt, 338 U.S. at 652, 70 S.Ct. at 368. The fourth amendment simply requires that the reporting scheme imposed by the statute bear a reasonable relationship to a permissible subject of governmental inquiry and not place an undue burden on the defendant. Id.

It is unnecessary for us to engage in a protracted discussion of the difficult question of whether § 203 amounts to a search and seizure because, as our discussion of the statute and first amendment indicates, there is nothing "unreasonable" about the reporting and disclosure of this Act. California Bankers Association at 67-70, 94 S.Ct. at 1520-1521.*fn15

Finally, defendant argues that the government should be estopped from requesting further reports in this case. The estoppel argument is based on a letter from the Department of Labor to the defendant dated June 9, 1978.*fn16 Defendant argues that the letter constitutes a settlement upon which defendant detrimentally relied in filing the 30 day report for the three employers who received persuader services. At this point we adopt the recent statement of Judge Bauer that "[w]e tire of arguments of expediency addressed to us under the guise of principle." Gibbons v. United States, 660 F.2d 225 at 229 (7th Cir. 1981).

While it is no longer true that the government can never be estopped, the "doctrine of estoppel must be applied with great caution to the government and its officials." United States v. Gross, 451 F.2d 1355, 1358 (7th Cir. 1971). See also Champaign County v. United States, 611 F.2d 1200, 1205 n. 8 (7th Cir. 1979). This is particularly true where the estoppel would prevent the effectuation of Congressional intent by altering the meaning of a statute. In such a situation estoppel will only be applied on proof of affirmative misconduct on the part of the government causing severe injury to the party affected. See Leimbach v. Califano, 596 F.2d 300 (8th Cir. 1979); California Pacific Bank v. SBA, 557 F.2d 218 (9th Cir. 1977); Santigo v. INS, 526 F.2d 488 (9th Cir.), cert. denied 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1975); cf. United States Immigration & Naturalization Service v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973).

In the case at bar we find neither affirmative misconduct nor the type of injury to the defendant required in order for an estoppel to apply. There is no indication in the letter from the Department to the defendant, nor any other evidence presented to this court, that the parties entered into a settlement of the question being litigated here. At most the letter could lead defendant to believe its interpretation of the requirements of the Act was correct, despite the holding of the Fourth and Fifth Circuits to the contrary.*fn17 However, a statement by an employee of a government agency contrary to applicable law cannot operate to bar a correct interpretation of the law except in the most egregious circumstances. See e.g. Leimbach v. Califano; Simon v. Califano, 593 F.2d 121 (9th Cir. 1979); Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2648, 53 L.Ed.2d 255 (1977).

Here we find no harm to the defendant resulting from the letter. Defendant has admitted that there is a legal duty to report instances of persuader activity. Yet it argues now that it was prejudiced by the government's action because it filed a report that was restricted to persuader activity.*fn18 We find no such prejudice. The letter did not hinder defendant in its ability to respond and litigate the scope of the reporting requirements of the Act, nor did it disclose any material other than that to which the government is entitled. This might be a different case were the Secretary seeking sanctions against the defendant for its failure to file prior to the corrected notification sent by the Department.*fn19 As it stands now, the only consequence of the June 8, 1978 communication is that the Association filed the required reports for its persuader clients. It did not, nor has it to this day, filed the required reports for its "advice only" clients. In these circumstances there is no justification for estopping the government from seeking a proper interpretation of the Act and effectuating what Congress believed to be the public interest.

For the foregoing reasons the Secretary of Labor's motion for summary judgment is granted and the Master Printers Association's motion for summary judgment is denied. Defendant is ordered to comply with the Secretary's request to produce the required LM-21 form within 30 days.


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