N.L.R.B. v. G.H.R. Energy Corp.

• Decision Date: 07 October 1982
• Docket Number: PLAINTIFF-APPELLEE,No. 81-3765,81-3765
• Citation: 707 F.2d 110
• Parties: 113 L.R.R.M. (BNA) 3415, 97 Lab.Cas. P 10,219 NATIONAL LABOR RELATIONS BOARD,, v G.H.R. ENERGY CORP., G.H.R. Companies, Inc., TCP Construction Co., TCP Engineering and Construction Co., Inc., John R. Stanley, Howard K. Schwamb, Frank Elvin, Louis Verbick, Defendants- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 110

707 F.2d 110

113 L.R.R.M. (BNA) 3415, 97 Lab.Cas. P 10,219

NATIONAL LABOR RELATIONS BOARD, PLAINTIFF-APPELLEE, v G.H.R. ENERGY CORP., G.H.R. Companies, Inc., TCP

Construction Co., TCP Engineering and Construction

Co., Inc., John R. Stanley, Howard K.

Schwamb, Frank Elvin, Louis

Verbick,

Defendants-

Appellants.

No. 81-3765.

United States Court of Appeals, Fifth Circuit.

Oct. 7, 1982.

Meagher & Hrebek, Robert J. Hrebek, Manasquan, N.J., for GHR, Stanley, Schwamb, & Elvin.

Partee & Waldrip, John B. Waldrip, New Orleans, La., for TPC and Verbick.

Aileen A. Armstrong, Robert I. Tendrich, Richard A. Cohen, N.L.R.B., Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, RANDALL and JOLLY, Circuit Judges.

PER CURIAM:

This case comes before us on the appeals of GHR Energy Corp. and GHR Companies, Inc. (collectively "GHR"), TCP Construction Co. and TCP Engineering and Construction Co., Inc. (collectively "TCP"), John R. Stanley, Howard K. Schwamb, Frank Elvin, and Louis Verbick from an order of the United States District Court for the Eastern District of Louisiana The district court's order enforced subpoenas duces tecum and ad testificandum issued under section 11 of the National Labor Relations Act. 29 U.S.C. Sec. 161 (1976 & Supp. IV 1980) (the "Act"). The issue presented is whether the district court abused its discretion in enforcing the subpoenas. Finding that it did not, we affirm.

These proceedings arise indirectly out of an eight-count complaint brought by the General Counsel of the National Labor Relations Board against GHR and TCP. (The complaint was based on charges filed by the Oil, Chemical & Atomic Workers International Union and its local, Local 4-447.) The most important part, for our purposes, alleged that the two companies constituted a "single integrated business enterprise and single employer within the meaning of the Act" and that an appropriate unit for collective bargaining consists of certain employees employed by GHR and TCP.

On August 26, 1981, almost a full month before the scheduled date of the unfair labor practice hearing, the Board's New Orleans (Region 15) office served the disputed subpoenas duces tecum on the two companies; a day later it served the contested subpoenas ad testificandum on three GHR officials--President John R. Stanley, Vice President of Engineering and Construction Howard J. Schwamb, and Vice President of Refining Frank Elvin. On the day the second subpoena was served, the Board's counsel also notified counsel for the two companies that he would like to meet with them at a mutually convenient time and place to inspect the subpoenaed material and to discuss the entering of appropriate stipulations. Six days later, on September 1, the Board served GHR with a new subpoena duces tecum. The new subpoena differed from the old primarily in that it permitted GHR to furnish signed statements in lieu of certain of the original records. Then, on September 15, the Board served a subpoena ad testificandum on President Louis Verbick of TCP, also directing him to appear at the unfair labor practice hearing. The administrative law judge charged with ruling on the contested subpoenas denied the companies' motion to revoke all four of them.

The unfair labor practice hearing duly began on September 21. After counsel for the Board explained that most of the requested documents and testimony pertained to the "single employer" allegation, the administrative law judge advised the parties that they had to "understand that all of [the] attributes and elements of a business enterprise have to be laid out in order to establish these allegations," and that the only way of getting the necessary information was from the companies themselves. Counsel for the Board offered to compromise, and stated that he had "no objection to reviewing the documents" at the companies' place of business. He also offered to work out a convenient schedule for the live testimony so that the four company officers would not have to waste time attending the entire hearing. The administrative law judge briefly adjourned the proceedings so that the parties could work out an accommodation; however, when the hearing resumed, counsel for both companies indicated that their clients would neither negotiate nor comply with any of the subpoenas. The hearing was then indefinitely adjourned to allow the Board to seek enforcement of its subpoenas in the district court. ¹

The district court hearing was held on November 4. Counsel for the Board reiterated that he intended to inspect and copy the subpoenaed records where they were kept so that the two companies would be spared the expense of transporting them to the hearing. The court then rejected the companies' arguments that the subpoenas were overbroad and too burdensome, and issued an order requiring TCP, GHR, and the four company officers to comply. The court stayed its order pending the outcome of this appeal.

Subpoenas from the Board are subject to extremely limited judicial review. A district court is required to uphold a subpoena if "production of the evidence ... called for by the subpoena ... relate[s] to a 'matter under investigation or in question,' " NLRB v. Williams, 396 F.2d 247, 249 (7th Cir.1968) (quoting NLRA Sec. 11(1), 29 U.S.C. Sec. 161(1)), and if that evidence "is described with 'sufficient particularity,' " NLRB v. ITT Telecommunications, 415 F.2d 768, 769 (6th Cir.1969) (citing Cudahy Packing Co. v. NLRB, 117 F.2d 692 (10th Cir.1941)). See NLRA Sec. 11(1), 29 U.S.C. Sec. 161(1) (1976) (establishing same standard for Board confirmation of its own subpoenas); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 343, 87 L.Ed. 424 (1943) (agency's subpoena must be enforced by district court as long as it is not "plainly incompetent or irrelevant to any lawful purpose"). See also Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208-09, 66 S.Ct. 494, 505, 90 L.Ed. 614 (1946) (agency subpoena must be reasonably particular and reasonably relevant to agency's lawful investigation). We, in turn, must affirm the district court's enforcement order unless we find that the court has abused its discretion. See, e.g., NLRB v. Consolidated Vacuum Corp., 395 F.2d 416, 419-20 (2d Cir.1968); NLRB v. Friedman, 352 F.2d 545, 547 (3rd Cir.1965); Shotkin v. Nelson, 146 F.2d 402, 404 (10th Cir.1944) ("Whether a subpoena duces tecum should be enforced is in the first instance a question for the trial court, and its decision should not be disturbed on appeal unless it clearly appears it is arbitrary and finds no support in the record."). Our standard of review, in short, requires us to reverse the district court's decision to enforce the subpoenas only in the most extraordinary of circumstances. ²

We find that the facts of the present case do no even approach the extraordinary.

GHR and TCP direct their most vigorous arguments against the subpoenas duces tecum. They claim, first, that the subpoenas were insufficiently particularly and irrelevant to the Board's unfair labor practice case, second, that the subpoenas were so broad that they were overly burdensome, and third, that the Board is unlawfully using subpoenas for general discovery purposes. For the reasons set out below, we find merit in none of these arguments.

Although on a first reading some of the language in the subpoenas does seem fairly broad, we think that the problem lies not so much with "particularity" as with the nature of the underlying claims. GHR and TCP have put their entire business relationship into question by denying that they constitute a "single employer" for purposes of the Act and that certain employees of GHR and TCP constitute an appropriate unit. To determine whether two companies constitute a "single employer," the Supreme Court has held that a court must look at, among other things, "interrelation of operations, common management, centralized control of labor relations, and common ownership" or financial control. See Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) quoted in South Prairie Construction Co. v. Local No. 627, Operating Engineers, 425 U.S. 800, 802 n. 3, 96 S.Ct. 1842, 1843 n. 3 48 L.Ed.2d 382 (1976). Similarly, in determining the appropriate bargaining unit, the Board examines the "community of interest" among employees, see NLRB v. Belcher Towing Co., 284 F.2d 118, 121 (5th Cir.1960), which means that the Board must look to "such factors as bargaining history, operational integration, geographic proximity, common supervision, similarity in job function, and degree of employee interchange." NLRB v. J.C. Penney Co., 559 F.2d 373, 375 (5th Cir.1977) (citations omitted). In order to make these...