N.L.R.B. v. Alexander

• Decision Date: 17 April 1979
• Docket Number: No. 78-1629,78-1629
• Citation: 595 F.2d 454
• Parties: 101 L.R.R.M. (BNA) 2115, 86 Lab.Cas. P 11,259 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Edward ALEXANDER, d/b/a Strand Theatre, K.I.M.Y.B.A. Corp., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 454

595 F.2d 454

101 L.R.R.M. (BNA) 2115, 86 Lab.Cas. P 11,259

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Edward ALEXANDER, d/b/a Strand Theatre, K.I.M.Y.B.A. Corp. Respondent.

No. 78-1629.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1979.

Decided April 17, 1979.

Andrew F. Tranovich of N. L. R. B., Washington, D. C., for petitioner; Allison W. Brown, Jr., and Jerrold J. Wohlgemuth, Attys., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on the brief.

Benjamin S. Houge of Houge & Mosher, Minneapolis, Minn., for respondent.

Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and HANSON, Senior District Judge. ^*

GIBSON, Chief Judge.

The National Labor Relations Board petitions for enforcement of its order against Edward Alexander, doing business as Strand Theatre, K.I.M.Y.B.A. Corp. (hereinafter referred to as respondent) entered May 8, 1978, wherein the Board affirmed the rulings, findings, and conclusions of the administrative law judge and adopted his recommended order. The administrative law judge found that respondent violated section 8(a)(3), (5), and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), (5), and (1) (1973), by terminating the collective bargaining relationship, refusing to bargain in good faith, and unlawfully locking out or discharging employees because of their union membership or support. The administrative law judge recommended ordering respondent to cease and desist from engaging in unfair labor practices in violation of section 8(a)(3), (5), and (1) and to take certain affirmative action including making employees whole for losses and recognizing and bargaining with the representative union.

Respondent resists enforcement solely on the ground that the Board improperly asserted jurisdiction; he does not contest the Board's findings of substantive violations of section 8(a)(3), (5), and (1) or the appropriateness of the ordered remedy.

Respondent is and has been engaged in the operation of motion picture theatres in the state of Minnesota, and operated a motion picture theatre in Duluth, Minnesota, under the trade name Strand Theatre and K.I.M.Y.B.A. Corp., which is the facility involved in the unfair labor practice charges. Respondent refused to either admit or deny most of the jurisdictional allegations of the Board's complaint. ¹ His basis for this refusal was the privilege against compulsory self-incrimination provided by the fifth amendment of the United States Constitution. On the same basis, Edward Alexander refused to comply with a subpoena duces tecum issued by the Board requesting jurisdictional information and refused to testify regarding that subject before the administrative law judge. The Duluth theatre features X-rated films and respondent sought to avoid providing information that might be used in a potential obscenity prosecution. ²

Since respondent declined to provide jurisdictional evidence, the Board presented the administrative law judge with secondary evidence establishing respondent's involvement in interstate commerce. The parties do not dispute the Board's conclusion that respondent engaged in sufficient interstate activity affecting commerce to meet the requirements for statutory jurisdiction over him, ³ as contrasted with the requirements of the Board's self-imposed jurisdictional standard, which requires an annual gross volume of business of at least $500,000, Motion Picture Machine Operators Local Union 330, AFL-CIO (Western Hills Theatres, Inc.), 204 N.L.R.B. 1057 (1973). Nor does either party maintain that the Board's evidence supplied a sufficient basis to meet the Board's discretionary jurisdictional standard for motion picture theatres. ⁴

The Board disregarded its discretionary jurisdictional standards on the basis of a policy first articulated in Tropicana Products, Inc., 122 N.L.R.B. 121 (1958). In Tropicana, the Board asserted jurisdiction, stating:

The Board has determined that it best effectuates the policies of the Act, and promotes the prompt handling of cases, to assert jurisdiction in any case in which an employer has refused, upon reasonable request by Board agents, to provide the Board or its agents with information relevant to the Board's jurisdictional determinations, where the record developed at a hearing, duly noticed, scheduled and held, demonstrates the Board's statutory jurisdiction, irrespective of whether the record demonstrates that the Employer's operations satisfy the Board's jurisdictional standards.

122 N.L.R.B. at 123.

Respondent argues that the Tropicana doctrine should not apply when the employer's refusal to provide jurisdictional information is premised upon the privilege against compulsory self-incrimination because the application of the doctrine in this situation would inflict a substantial penalty on respondent because he chose to exercise his fifth amendment rights. This argument misconstrues the basis for applying the Tropicana doctrine and incorrectly characterizes an order imposed to remedy unfair labor practices as a penalty addressed to the exercise of a constitutional right.

The Board asserted jurisdiction pursuant to an established policy which is totally unrelated to the fifth amendment privilege against compulsory self-incrimination. This policy serves the objectives of the National Labor Relations Act by permitting the Board to conserve its resources when undertaking to meet its burden of proving jurisdiction and is consistent with the basic reasons for adopting the discretionary jurisdictional standards. As the Board stated in Tropicana, 122 N.L.R.B. at 123:

These standards were adopted by the Board, Inter alia, as an administrative aid to facilitate its jurisdictional determinations in order that it might reduce the amount of time and energy expended in the investigation of jurisdictional questions, so that it might concentrate its energies on substantive issues in the many important cases coming before it and thus increase its case-handling capacity. The adoption of such standards in no way precludes the Board from exercising its statutory authority, in any properly filed case, where legal jurisdiction alone is proven, if the Board is satisfied that such action will best effectuate the policies of the Act.

The purpose of the Tropicana doctrine is to avoid delay in processing cases and to channel resources toward investigating and remedying substantive labor law violations. While establishing the doctrine may have encouraged employers voluntarily to provide information regarding jurisdiction, the effect of applying the doctrine in any particular case is merely to expedite the processing of that case and minimize the resources expended to meet the Board's burden of asserting jurisdiction.

The Board is not bound by its self-imposed guidelines, and even when it disregards these guidelines on simply an Ad hoc basis, the courts should not intervene unless compelled to do so by extraordinary circumstances or to correct an abuse of discretion. NLRB v. Erlich's 814, Inc., 577 F.2d 68, 71 (8th Cir. 1978); NLRB v. Timberland Packing Corp., 550 F.2d 500, 501 (9th Cir. 1977), Cert. denied, 434 U.S. 922, 98 S.Ct. 397, 54 L.Ed.2d 279 (1978); Glen Manor Home for Jewish Aged v. NLRB, 474 F.2d 1145, 1149 (6th Cir.), Cert. denied, 414 U.S. 826, 94 S.Ct. 130, 38 L.Ed.2d 59 (1973); NLRB v. Okla-Inn, 488 F.2d 498, 500 (10th Cir. 1973); NLRB v. City & County Electric Sanitary Sewer Service, Inc., 467 F.2d 209 (8th Cir. 1972); NLRB v. Marinor Inns, Inc., 445 F.2d 538, 541 (5th Cir. 1971); NLRB v. Carpenters Local No. 2133, 356 F.2d 464 (9th Cir. 1966).

In the instant case, the union representing respondent's employees filed an unfair labor practice charge with the Board. The Board, after preliminary investigation, issued a complaint that contained allegations designed to provide a basis for jurisdiction. When respondent failed to admit or deny these allegations, or provide information relating to them, the Board was called upon to establish jurisdiction. It met this burden by following an established policy to investigate only to the extent necessary to present evidence of statutory jurisdiction. By proceeding according to this established practice, the Board provided uniform treatment to employees charged with unfair labor practices and...