Under provision of Norris-LaGuardia Act making liability of organization interested in labor dispute for unlawful acts of individual officers, members, or agents dependent upon clear proof of authorization of such act, requirement of 'authorization' restricts liability, although officers or members are acting within scope of their general authourity, to those organizations or members who actually participate in the unlawful acts, except upon clear proof that particular act charged, or acts generally of that type and quality, had been expressly authorized, or necessarily followed from a granted authority. Norris-LaGuardia Act, 6, 29 U.S.C.A. 106.[ United Broth. of Carpenters and Joiners of America v. U.S. 330 U.S. 395 (1947) ]
[330 U.S. 395, 397] Mr. Charles H. Tuttle, of New York City, for petitioners United Brotherhood of Carpenters, etc., in Nos. 6 and 7.
Messrs. Joseph O. Carson II, of Indianapolis, Ind., Harry N. Routzohn, of Dayton, Ohio, Hugh K. McKevitt and Jack M. Howard, both of San Francisco, Cal., for petitioner Bay County District Council of Carpenters in No. 7.
Mr. Maurice E. Harrison, of San Francisco, Cal., for petitioners in No. 8.
Messrs. Guy C. Calden and Clarence E. Todd, both of San Francisco, Cal., for petitioner in No. 9. [330 U.S. 395, 398] Mr. Morgan J. Doyle, of San Francisco, Cal., for petitioners in No. 10.
Mr. Holmes Baldridge, of Washington, D.C., for respondent.
Mr. Justice REED delivered the opinion of the Court.
These are criminal cases in which conviction of various defendants has been obtained in the District Court of the Unit d States for the Northern District of California, Southern Division, and affirmed by the Circuit Court of Appeals of the Ninth Circuit, 144 F.2d 546. They were charged with conspiracy to violate the Sherman Act, 1.1 The parties to the alleged conspiracy were of two groups: on the one hand, local manufacturers of and dealers in the commodities affected and their incorporated trade associations and officials thereof; and, on the other, unincorporated trade unions and their officials or business agents. The indictment charged that the defendants below unlawfully combined and conspired together, successfully, to [330 U.S. 395, 399] monopolize unduly a part of interstate commerce in millwork and patterned lumber. The purpose and effect of the conspiracy was alleged to be to restrain out-of-state manufacturers from shipping and selling these commodities within the San Francisco Bay area of California and to prevent the dealers in that area from freely handling them. It was alleged that the conspiracy also sought to raise the prices of the products affected. To achieve the purpose, a contract was entered into between the defendants for a wage scale for members of labor unions working on the articles involved, combined with a restrictive clause, '... no material will be purchased from, and no work will be done on any material or article that has had any operation performed on same by Saw Mills, Mills or Cabinet Shops, or their distributors that do not conform to the rates of wage and working conditions of this agreement,' with specified exceptions not here material. This clause, it is alleged, was enforced to the mutual advantage of the conspirators by some of the parties through conference or picketing or acquiescence in the arrangement. By means of the conspiracy, union workmen obtained better wages, the employers higher profits and manufacturers against whom the conspiracy was directed were largely prevented from sharing in the Bay Area business, all to the price disadvantage of the consumer and the unreasonable restraint of interstate commerce. The legal theory which was followed in their conviction was that conspiracies between employers and employees to restrain interstate commerce violate the Sherman Act.
Five petitions for certiorari were presented to this Court by different defendants either singly or jointly with others. It is sufficient for the purposes of this review to say that they raised the question of the application of 1 of the Sherman Act to conspiracies between employers and employees to restrain commerce and, except the petitions in the employer group, the application of 6 of the [330 U.S. 395, 400] Norris-LaGuardia Act in trial of such an indictment. 2 On account of the importance of the federal questions raised and asserted conflicts in the circuits, the writs of certiorari were granted. 3
Since these cases were taken the important question of the application of the Sherman Act to a conspiracy between labor union and business groups has been decided by us. We held that such a conspiracy to restrain trade violated the Sherman Act. Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797 , 65 S.Ct. 1533. This holding causes us to approve the ruling of the trial and appellate courts on the first question presented by the certiorari but it left unresolved the question as to the application of 6 of the Norris-LaGuardia Act, the point to which this decision is directed. [330 U.S. 395, 401] The indictment charges a conspiracy forbidden by the Sherman Act. On that issue, the power of the trial court is limited by 6 of the Norris- LaGuardia Act. Note 2, supra. The limitations of that section are upon all courts of the United States in all matters growing out of labor disputes, covered by the Act, while may come before them. It properly is conceded that this agreement grew out of such a labor dispute and that all parties defendant participated or were interested in that dispute. See 13, 47 Stat. 73, 29 U.S.C.A. 113. Section 6 of the Norris-LaGuardia Act first appeared in a draft bill of the Senate Committee on the Judiciary as 6 thereof. At that time its form was precisely the same as at present. The draft was drawn as a comprehensive substitute for S. 1482 of the 70th Congress, a bill providing only for a limitation on the jurisdiction of equity courts in the issuance of injunctions. In the 71st Congress, a similarly limited bill on the same subject, S. 2497, was reintroduced and a like comprehensive substitute proposed. Neither substitute was reported out of the Committee. 4 These substitute bills are quite similar in form to the Norris-LaGuardia Act. In substance, and therefore in effectiveness, they are the same.
In the next, the 72d Congress, the bill, H.R. 5315, which was to become the Norris-LaGuardia Act, was introduced. Section 2 succinctly states the public policy that it was designed to further-a definition of and limitation upon the jurisdiction and authority of courts of the United States in labor disputes. 5 That purpose was in accord with [330 U.S. 395, 402] that behind the earlier drafts referred to above. 6 As the new bill was practically identical with these long considered committee substitutes, the hearings on H.R. 5315 were short. 7 But even so, the attack conti ued on 6 as a restriction on the general law of agency in labor disputes. 8 The reply of the House Committee was that it did 'not affect the general law of agency' and was necessary 'under the circumstances' so that 'the courts should know that Congress expects them not to hold officers or associations liable for the unlawful acts of a member without clear proof of actual participation in, or authorization of, any unlawful acts by the officer or association.' 9 The Senate Committee was of the view that it was a 'rule of evidence,' not a 'new law of agency.'
We need not determine whether 6 should be called a rule of evidence or one that changes the substantive law of agency. We hold that its purpose and effect was to relieve organizations, whether of labor or capital,11 and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization without clear proof that the organization or member, charged with responsibility for the offense, actually participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration. 12 [330 U.S. 395, 404] Thus 6 limited responsibility for acts of a co-conspirator-a matter of moment to the advocates of the bill. 13 Before the enactment of 6, when a conspiracy between labor unions and their members, prohibited under the Sherman Act, was established, a widely publicized case had held both the unions and their members liable for all overt acts of their co- conspirators. 14 This liability resulted whether the members or the unions approved of the acts or not or whether or not the acts were offenses under the criminal law. While of course participants in a conspiracy that is covered by 6 are not immunized from responsibility for authorized acts in furtherance of such a conspiracy, they now are protected against liability for unauthorized illegal acts of other participants in the conspiracy.
The legislative history makes the intended meaning of the word 'authorization,' we think, almost equally clear. The rule of liability for acts of an agent within the scope of his authority, based on the Danbury Hatters Case, was urged as an argument against the language of 6.15 When [330 U.S. 395, 405] the Senate Committee on the Judiciary reported the bill, it dealt with this contention.
We hold, therefore, that 'authorization' as used in 6 means something different from corporate criminal responsibility for the acts of officers and agents in the course or scope of employment. 17 We are of the opinion that the requirement of 'authorization' restricts the responsibility or liability in labor disputes of employer or employee associations, organizations or their members for unlawful acts of the officers or members of those associations or organizations, although such officers or members are acting within the scope of their general authority as such officers or members, to those associations, organizations or their officers or members who actually participate in the unlawful acts, except upon clear proof that the particular act charged, or acts generally of that type and [330 U.S. 395, 407] quality, had been expressly authorized, or necessarily followed from a granted authority, by the association or non-participating member sought to be charged or was subsequently ratified by such association, organization or member after actual knowledge of its occurrence.
In this prosecution the United Brotherhood of Carpenters and Joiners and all the local unions who were convicted requested an instruction or instructions that embodied the above interpretation of 6.18 A similar request was made by the individual members by requested instruction No. 58. These requested instructions were refused and instead instructions were given that stated a different concept of law as is evidenced by the excerpts in the marginal note. 19 [330 U.S. 395, 408] So far as the Unions, both local and national, are concerned, the necessity under our construction for an instruction based on 6 is apparent. The United Brotherhood was not a party to any of the agreements. Local unions took a more definite part than the United Brotherhood. In some instances the name of a local union was signed to the agreement that contained the restrictive clause. Necessarily acts performed by or for the unions were done by their individual officers, members or agents. We do not enter into an analysis of the evidence that was relied upon to show the participation of the unions in the conspiracy. The evidence in any new trial may be quite different. No matter how strong the evidence may be of an association's or organization's participation through its agents in the conspiracy, there must be a charge to the jury setting out correctly the limited liability under 6 of such association or organization for acts of its agents. 20 For a judge may not direct a verdict of guilty no matter how conclusive the evidence. 21 There is no way of knowing here whether the jury's verdict was based on facts within the condemned instructions, note 19 above, or on actual authorization or [330 U.S. 395, 409] ratification of such acts, note 18.22 A failure to charge correctly is not harmless, since the verdict might have resulted from the incorrect instruction. We are of the opinion, therefore, that the judge should have instructed the jury as to the limitations upon the association's liability for the acts of its agents under 6. The error is aggravated by the failure to give the correct charge upon request.
The suggestion is made that the alert and powerful unions and corporations gain the greatest degree of immuniy under our interpretation of 6. Tha is not the case. Section 6 draws no distinction as to liability for unauthorized acts between the large and the small, between national unions and local unions, between powerful unions and weak unions, between associations or organizations and their members. And we draw no such distinctions.
There is no implication in what we have said that an association or organization in circumstances covered by 6 must give explicit authority to its officers or agents to violate in a labor controversy the Sherman Act or any other law or to give antecedent approval to any act that its officers may do. Certainly an association or organization cannot escape responsibility by standing orders disavowing authority on the part of its officers to make any agreements in violation of the Sherman Act and disclaiming union responsibility for such agreements. Facile arrangements do not create immunity from the act, whether they are made by employee or by employer groups. The condi- [330 U.S. 395, 410] tions of liability under 6 are the same in the case of each. The grant of authority to an officer of a union to negotiate agreements with employers regarding hours, wages, and working conditions may well be sufficient to make the union liable. An illustrative but nonrestrictive example might be where there was knowing participation by the union in the operation of the illegal agreement after its execution. And the custom or traditional practice of a particular union can also be a source of actual authorization of an officer to act for and bind the union.
Our only point is this: Congress in 6 has specified the standards by which the liability of employee and employer groups is to be determined. No matter how clear the evidence, they are entitled to have the jury instructed in accordance with the standards which Congress has prescribed. To repeat, guilt is determined by the jury, not the court. The problem is not materially different from one where the evidence against an accused charged with a crime is well nigh conclusive and the court fails to give the reasonable doubt instruction. It could not be said that the failure was harmless error. 23
It is suggested that since 'conscious participation' was required for conviction by the instructions given, error as to the individual defendants cannot be found under any theory of the rule of 6. But we think that failure to instruct the jury on the imputation of guilt from the acts of others as limited in labor disputes by 6 affects the individuals as well as the associations. The section covers organizations and their members alike. Individuals, without association authority, may be guilty of such a conspiracy as this under the Sherman Act, but under 6 they will not be guilty merely because they are members or officers of a guilty association. Nor are individuals guilty [330 U.S. 395, 411] because of acts of other individuals in which they did not participate, or which they did not authorize or ratify. Although an illegal conspiracy under the Sherman Act was proven at the trial, the individuals are entitled to have their participation weighed by a jury under an instruction explaining the circumstances under which 6 permits acts of other individuals or of associatians or of organizations in labor disputes to create personal liability. To instruct only that conscious participation of the individual is required leaves a jury free to weigh an individual's guilt in the light of unauthorized and unratified acts of others with whom he is associated but in whose acts he has not participated. As the evidence of any individual's activities in the alleged conspiracy is a minor part of the evidence as to the entire scheme, this delimitation of his responsib lity is important.
Certiorari was granted to two employer groups, Nos. 8 and 10, each containing an incorporated trade association and its officers and members, both individual and corporate. Both groups combatted the indictment by demurrer on the ground that, as the restrictive agreement was directed at the maintenance of proper working conditions, it did not state a crime under the Sherman Act. The demurrer was overruled by the trial court. Our decision in Allen Bradley Co. requires us to uphold this conclusion. Thereafter pleas of nolo contendere were entered by each defendant in the employer petitioner groups.
Each of the employer petitioners, if they has stood trial, as we have indicated hereinbefore, would have been entitled to the same instruction under 6 as we have held the union group should have received. And though the failure so to charge was not excepted to, we would not be precluded from entertaining the objection. 24 The errone- [330 U.S. 395, 412] ous charge was on a vital phase of the case and affected the substantial rights of the defendants. We have the power to notice a 'plain error' though it is not assigned or specified. 25 In view of their plea of nolo contendere, does justice require that these employer groups should now be given an opportunity to stand trail in the situation created by our subsequent rulings in the Allen Bradley case and in this case? We think that it does.
This present decision furnishes a guide for the application of 6 to liability for acts of agents in labor disputes. Ordinarily a plea of nolo contendere leaves open for review only the sufficiency of an indictment. 26 However, in view of the then existing uncertainty as to liability for contracts between groups of employers and groups of employees that restrained interstate commerce and the application of 6 of the Norris- LaGuardia, we conclude that in this exceptional situation the employer groups, also, should have an opportunity to make defense to the indictment.