NLRB v. South Bay Daily Breeze

• Citation: 415 F.2d 360
• Decision Date: 19 September 1969
• Docket Number: No. 21949.,21949.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTH BAY DAILY BREEZE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

415 F.2d 360 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTH BAY DAILY BREEZE, Respondent.

No. 21949.

United States Court of Appeals Ninth Circuit.

August 1, 1969.

Rehearing Denied September 19, 1969.

Lawrence Joseph (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Lawrence M. Joseph, J. Richard Thesing, Attys., Washington, D. C., for petitioner.

O'Melveny & Myers (argued), Charles G. Bakaly, Jr., Peter M. Anderson, Stanley H. Williams, Brundage & Hackler, Los Angeles, Cal., for respondent.

Before BARNES and CARTER, Circuit Judges, and BYRNE,^* Senior District Judge.

BARNES, Circuit Judge:

This case is before us pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1964), which authorizes our review of orders issued by the National Labor Relations Board. The Board has petitioned for enforcement against the respondent, South Bay Daily Breeze, of an order issued on October 12, 1966, and reported (along with the Board's decision) at 160 N.L.R.B. 1850 (1966).

Respondent publishes a daily newspaper in Torrance, California. In April, 1965, an international representative of the American Newspaper Guild met with three employees of respondent and discussed with them the advantages of Guild representation. An organizing campaign followed. Fifteen signed authorization cards were soon obtained, and the international representative sent a telegram to respondent, requesting recognition as the bargaining agent of respondent's editorial employees. Estimates regarding the size of the appropriate bargaining unit at that time ranged from twenty-two to twenty-eight employees, and respondent's publisher, Robert Curry, expressing doubt that the Guild represented a majority of the employees in the unit, refused to grant such recognition. A National Labor Relations Board election was subsequently scheduled for July 20, 1965.

In the interim, several incidents relevant to this litigation occurred. First, in a representation hearing before the Board's Regional Director, the appropriate unit was fixed at twenty-five employees. Respondent waived its right to seek Board review of that determination. Second, certain of respondent's supervisors questioned various employees concerning their pro or anti-union sympathies, at times suggesting with some specificity that pay increases would follow the election. Statements were made by supervisors to the effect that there were "ways" of ascertaining who supported the union, and that if the union were approved, work rules would be manipulated so that such persons could be discharged.¹ In addition, the possibility of a blacklist of union sympathizers was suggested.

After the election, which resulted in a tie vote,² the Guild filed with the Board timely objections to respondent's conduct. The Board set aside the election and found that respondent had violated the Act (1) by interfering with its employees' rights under section 7 to choose their bargaining agent freely and without coercion, and (2) refusing to bargain with the Guild. The resulting order prohibited respondent from continuing to engage in the unfair labor practices found to have been committed and from interfering in any other manner with its employees' rights under the Act. Affirmatively, respondent was ordered to bargain with the Guild upon request.

I EMPLOYERS' INTERFERENCE

Respondent's challenge to the finding that it interfered with its employees' free choice of a bargaining agent during the pre-election period is limited to the argument that a document relating to its conduct was improperly considered by the Board. Indeed, that argument would seem to constitute the only possible attack on the findings referred to, since there clearly exists substantial support for the conclusions that respondent's supervisors interrogated employees, gave the impression of surveillance regarding their union activities, promised post-election benefits, and threatened that various unpleasant consequences might befall union supporters.

The document in question is a memorandum prepared for publisher Curry by News Editor Kenneth Johnson. It provided the trial examiner and the Board with highly persuasive evidence that respondent was during the pre-election period attempting to interfere with the free choice of its employees.³ The basis for respondent's challenge to the admissibility of the memorandum lies in the fact that it was taken from Johnson's desk without permission by employee Gary Gillis.

We may assume that if admission of the memorandum into evidence was improper, its prejudicial effect is sufficient to preclude enforcement of the Board's order (at least insofar as that order relates to the findings of interference with the section 7 rights of respondent's employees); its probative force is such that it very likely played at least some relatively significant part in the trial examiner's resolution of the questions before him. Nevertheless, we are unable to hold in favor of respondent, for we do not view admission of the memorandum as error.

Respondent contends that the document should have been excluded on the ground that it was obtained in violation of the Fourth Amendment. In rejecting this contention, we are controlled both by the Supreme Court's only holding squarely on point and that Court's description of the judicial protection afforded by the amendment. In our judgment, neither prerequisite for invocation of the Fourth Amendment (proscribed conduct by a government official and prosecution of a criminal nature) is here present.

In Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, (1921), the Court ruled that the use in a criminal prosecution of personal papers stolen from the accused by a private individual did not violate the accused's Fourth Amendment rights when the government was in no way involved in the theft. Although challenged in cases decided after the Court's holding in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), outlawed federal use of evidence illegally obtained by state agents (e. g., United States v. McGuire, 381 F.2d 306, 313-314, n. 5 (2d Cir. 1967), cert. denied, Perry v. United States, 389 U.S. 1053, 88 S.Ct. 800, 19 L.Ed.2d 848 (1968)), the Burdeau holding has not been overruled. A recent decision by the Seventh Circuit, Knoll Associates, Inc. v. F. T. C., 397 F.2d 530 (7th Cir. 1968), is not inconsistent with our reading of Burdeau. While there holding that evidence illegally seized by an employee should not have been admitted because of Fourth Amendment violations, the court stated that, "the undisputed evidence shows that the disloyal employee stole the documents for the purpose of assisting the Commission counsel in the prosecution of the proceeding then pending, and the record shows that the Commission by its use of the documents knowingly gave its approval to the employee's act." Id. at 533. This is conduct not countenanced by Burdeau, where the Court made pointed reference to the fact that government action was not present in the taking.⁴ 256 U.S. at 476, 41 S.Ct. 574, 65 L.Ed. 1048.

In Knoll,supra, the actions of the government and the thief were so related as to make the thief a government agent and his conduct unacceptable under long standing Fourth Amendment grounds. Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927). The present case is significantly different. There is no showing here that the purpose for which the memorandum was taken was to aid the Board in its case against respondent; Gillis' testimony, in fact, was to the contrary. 6 R.T. at 99. The document was taken prior to the election and some time before these proceedings were initiated. In such circumstances, at least, the mere evidentiary use by the General Counsel of the memorandum does not constitute prohibited conduct. Compare: Barnes v. United States, 373 F.2d 517 (5th Cir. 1967) with Corngold v. United States, 367 F.2d 1 (9th Cir. 1966).

Even if we did not reject respondent's contention as incompatible with the Burdeau mandate, we would decline to invoke constitutional protection because the Board's proceeding was not one subject to the standard of the Fourth Amendment. Traditionally, that amendment has only applied where "criminal" or "quasi-criminal" sanctions might be imposed. Camara v. Municipal Court, 387 U.S. 523, 18 L.Ed.2d 930 (1967); One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1885). The object of those proceedings "is to penalize for the commission of an offense against the law." 380 U.S. at 700, 85 S.Ct. at 1250. This is not the case here, since neither criminal procedures nor sanctions are involved. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The exclusionary rule is not here appropriate. Contra, Knoll Associates, supra; NLRB v. Bell Oil & Gas Co., 98 F.2d 870 (5th Cir. 1938).

Even if we disregard the procedural context and its consequences, and focus on the applicability of the Fourth Amendment in terms of the intended "security to be afforded" the individual (the approach advocated by the Knoll's court, 397 F.2d at 535), we find, because of our initial determination, involving Burdeau, that the exclusionary rule is inapposite. The function of the rule is "to compel respect for the constitutional guarantee of the Fourth Amendment in the only effective available way — by removing the incentive to disregard it." Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1959). There is no logic in excluding evidence to prevent the government from violating an individual's constitutional rights in a case when the government is not guilty of such a violation.

Respondent further argues that even if admission of the memorandum is not constitutionally forbidden, the use...