Intertype Co., Div. of Harris-Intertype Corp. v. Penello

• Citation: 269 F. Supp. 573
• Decision Date: 18 February 1967
• Docket Number: No. 66-C-34-H.,66-C-34-H.
• Parties: INTERTYPE COMPANY, a DIVISION OF HARRIS-INTERTYPE CORP., Plaintiff, v. John A. PENELLO, Regional Director, Region 5, National Labor Relations Board, George Bokat, Chief Trial Examiner, National Labor Relations Board, and John Doe, an Unnamed Trial Examiner, National Labor Relations Board, Defendants.
• Court: U.S. District Court — Western District of Virginia

269 F. Supp. 573

INTERTYPE COMPANY, a DIVISION OF HARRIS-INTERTYPE CORP., Plaintiff, v. John A. PENELLO, Regional Director, Region 5, National Labor Relations Board, George Bokat, Chief Trial Examiner, National Labor Relations Board, and John Doe, an Unnamed Trial Examiner, National Labor Relations Board, Defendants.

No. 66-C-34-H.

United States District Court W. D. Virginia, Harrisonburg Division.

February 18, 1967.

Kenneth C. McGuiness, Vedder, Price, Kaufman, Kammholz & McGuiness, Washington, D. C., Flournoy L. Largent, Jr., Largent, Anderson & Larrick, Winchester, Va., for plaintiff.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., David C. Sachs, Regional Atty., Region 5, N. L. R. B., Baltimore, Md., for defendants.

OPINION

MICHIE, District Judge.

Plaintiff, Harris-Intertype Corporation, seeks to have this court compel the production of an investigation file compiled by the defendant John A. Penello, Regional Director, Region Five of the National Labor Relations Board, during a union certification proceeding so that its contents may be made available to the Company for preparation of its defense and also be made part of the record in a subsequent unfair labor practice proceeding. Additionally, plaintiff requests that this court order the reopening of the hearing before the trial examiner in the unfair labor practice proceeding so that if this court does order the production of the investigation file it may be entered into evidence and made a part of the record in the present proceeding.¹ The essence of plaintiff's complaint is that, by refusing to make the investigation file available, defendant Penello has deprived the plaintiff of the opportunity of a full and fair hearing in the unfair labor practice proceeding and, further, that the absence of this evidence in the record will preclude meaningful judicial review. While I can well understand the Company's desire to obtain, and rebut if necessary, the evidence upon which its objections to the certification were overruled, I have concluded that I do not have the power to reach the merits thus presented.

On June 21, 1966, pursuant to a direction of election issued by the defendant Penello in accordance with Section 9 of the National Labor Relations Act, 29 U.S.C. § 159, a representation election was conducted among the production and maintenance employees at the plaintiff company's Winchester, Virginia, plant to determine whether such employees desired to be represented for collective bargaining purposes by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO. A slight majority of the ballots cast in that election were in favor of the union. A vigorous organizing campaign had apparently preceded the election and, shortly after the election, on June 27, 1966, the Company filed timely objections alleging that the election should be set aside, inter alia, (a) because the Union's campaign literature and statements misrepresented the employer's conduct, (b) because a Union agent had engaged in improper electioneering and (c) because conduct on the part of the Board, indicating to employees that it favored the Union, had destroyed the required "laboratory atmosphere".

Objections to the election having been noted, Regional Director Penello conducted an investigation as required by the National Labor Relations Board rules and regulations, 29 C.F.R. 102.69, and on August 5, 1966 issued a supplemental decision and certification of representative in which he stated the facts as determined from the investigation, applied Board precedents to the facts as found and concluded that the objections should be overruled. The applicable regulations, 29 C.F.R. 102.69(c), provide that the Regional Director shall conduct an investigation followed by a decision which may be made with or without a hearing. Director Penello did not call for a hearing in this instance and made his findings purely upon the basis of the ex parte investigation. During the process of this investigation to determine if the Company's objections were of merit, Penello solicited information from several of the Company's employees. The extensive report issued by Penello along with the supplemental decision and certification of representative did not disclose the names of the employees nor the substance of their testimony. This part of the evidence which may well have influenced his reported findings is not of record. It is this undisclosed evidence upon which the decision and certification of August 5, 1966 may have been based to which the Company now requests access.

On August 15, 1966 the Company filed with the Board a request for review of the Regional Director's decision. By telegram order dated August 31, 1966, the Board denied this request on the ground that it raised "no substantial issues warranting review." No direct judicial review is available to the Company from a certification decision. In order to test the Board's certification the Company must refuse to bargain with the certified representative, thereby committing an unfair labor practice in violation of Section 8(a) (5) of the Act, 29 U.S.C. § 158(a) (5). Accordingly, on September 21, 1966 the Company notified the Union that it would not bargain because it wished to test the Board's certification. On October 12, 1966, on the basis of the Company's refusal to bargain, Regional Director Penello issued a complaint alleging, inter alia, that the Company was engaging in an unfair labor practice. On November 3, 1966 the Company filed an answer to the unfair labor practice complaint asserting, as a defense, that the certification of the Union was invalid and void.

Counsel for the plaintiff Company subsequently informed the defendant Penello by letter, followed the next day by a subpoena duces tecum, that it would require him to produce "all files, documents, reports, memoranda, affidavits, notes, correspondence and records pertaining to the investigation or investigations conducted by the Regional Director" in the above mentioned representation proceeding. As required by Section 11(1) of the Act, 29 U.S.C. § 161(1), the Board issued the requested subpoena duces tecum and it was served by the Company upon Regional Director Penello.

Shortly thereafter Director Penello filed a petition to revoke the subpoena alleging that the subpoenaed materials were privileged and irrelevant to the unfair labor practice hearing. As a matter preliminary to the unfair labor practice proceeding, the trial examiner took up the Regional Director's petition to revoke the subpoena duces tecum and, after consideration, granted the petition to revoke. After the taking of testimony and the consideration of other matters raised by the parties, but without considering any of the evidence sought to be produced by the subpoena duces tecum, the trial examiner closed the unfair labor practice hearing. Following the trial examiner's decision on the Regional Director's petition to revoke the subpoena duces tecum, plaintiff Company commenced suit in this court to obtain the desired relief.

There can be no doubt that, if the materials in the investigation file were to be made available to the Company, they would be of great assistance to the Company in its preparation of a defense in the unfair labor practice proceeding. The inclusion of the materials would most certainly make the record more complete and would allow both the Board and the Court of Appeals to make a more knowledgeable review. Also arguing for the Company is current well-founded judicial policy favoring disclosure. See e. g., Communist Party of United States v. Subversive Activities Control Bd., 102 U.S.App.D.C. 395, 254 F.2d 314 (D.C.Cir.1958); NLRB v. Adhesive Products Corp., 258 F.2d 403 (2d Cir. 1958).

However, the issue before this court is not whether the Company makes out a meritorious case but rather whether this court has jurisdiction to act.

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938) established that a district court did not have jurisdiction to enjoin the hearing of a case before, or to review any interlocutory order of, the National Labor Relations Board because the Congress had vested the exclusive power of review in the Circuit Courts of Appeals and for the additional reason that "* * * no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers, supra, at pp. 50, 51, 58 S.Ct. at p. 463. The Myers ruling has consistently been approved and the principle has become well established that a district court does not possess the power to police either the procedural or the substantive purity of a proceeding in progress before the Board. Bokat v. Tidewater Equipment Company, 363 F.2d 667 (5th Cir. 1966).

In the recent case of United Aircraft Corp. v. McCulloch, 125 U.S.App.D.C. 27, 365 F.2d 960 (1966) the court was asked to reverse a ruling of the district court holding that it lacked the power to restrain the Board or to review the propriety of the trial examiner's dismissal of certain allegations in the complaint. The Court of Appeals said at p. 961:

It seems to us that a mere statement of the relief sought is sufficient to demonstrate want of jurisdiction in the District Court to proceed. Doing so would make the District Court an appellate tribunal over interlocutory rulings of the Board. Congress has directed the route for proceedings such as this, and no detour has been provided.

* * * * * *

Since Myers the courts have, without exception ruled that the exclusive review of proceedings involving unfair labor practices abides in the Circuit Courts of Appeals under Section 10(e) and (f) of the National Labor Relations Act, and that interlocutory rulings of the Board in the course of such proceedings may not be considered by federal District Courts. Certainly, the review sections of the

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