966 F.2d 812 (3rd Cir. 1992), 91-5475, N.L.R.B. v. Frazier

Docket Nº:91-5475.
Citation:966 F.2d 812
Party Name:NATIONAL LABOR RELATIONS BOARD, Appellant v. Gary FRAZIER, an Individual.
Case Date:June 15, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 812

966 F.2d 812 (3rd Cir. 1992)



Gary FRAZIER, an Individual.

No. 91-5475.

United States Court of Appeals, Third Circuit

June 15, 1992

Argued Dec. 12, 1991.

Page 813

Eric G. Moskowitz, Deputy Asst. Gen. Counsel for Special Litigation, Adam Nemzer, (Argued), N.L.R.B., Washington, D.C., for appellant.

John K. Bennett (Argued), Paul J. DiMaio, Carpenter, Bennett & Morrissey, Newark, N.J., for appellee.

Before: SLOVITER, Chief Judge, SCIRICA and ROTH, Circuit Judges.


ROTH, Circuit Judge.

This appeal concerns an enforcement proceeding brought by the National Labor Relations Board ("Board") to compel Gary Frazier to testify in an unfair labor practice proceeding. The United States District Court for the District of New Jersey referred the matter to a United States Magistrate Judge who denied the Board's application for enforcement of its subpoena ad testificandum. The district judge, applying the "clearly erroneous" standard, affirmed the magistrate judge's decision. On appeal, the Board argues that the district court should have reviewed the magistrate judge's decision de novo and enforced the Board's subpoena, as the evidence before the court demonstrated that Frazier's testimony was relevant to the pending unfair labor practice proceeding. Because we agree that Frazier's testimony is relevant to the Board's proceedings and that the district court employed the wrong standard of review, we will reverse the district court's judgment and will remand with instructions for the subpoena to issue.


The material facts in this case are few and basically undisputed. Gary Frazier's employer, Prudential Property Company ("Prudential"), owns in partnership certain properties located at Gateway Center in

Page 814

Newark, New Jersey, where Prudential has its offices. Prudential contracted with Property Management Systems ("Systems"), an independent property management firm with headquarters in Houston, Texas, to manage the Gateway Center properties. Under the contract, Systems must secure cleaning and maintenance contracts for Gateway Center. Prudential retains the right to approve contracts proposed by Systems.

Early in 1989, Prudential approved the re-bidding of the contract for cleaning Gateway Center. At that time, Ogden-Allied Services Corporation ("Ogden") held the contract, and its cleaning employees were represented by Local 32B-32J of the Service Employees International Union, AFL-CIO ("the Union"). Ogden submitted the second lowest bid for the new contract. The lowest bidder was Control Services, Inc. ("Control").

In March 1989, Systems forwarded Prudential a proposal to award the cleaning contract to Control. The proposal stated, under the heading "Sources of Savings," that "[t]he unions currently in place will remain in place." App. 71. On May 5, 1989, both Barbara Green, Prudential's manager responsible for Gateway Center, and Gary Frazier, Green's superior and Prudential's new general manager, approved Systems' proposal. Frazier was responsible for the final approval of the contract award. In June 1989, Systems contracted with Control to clean Gateway Center. Control began its work under the contract that same month.

On June 23, 1989, the Union filed an unfair labor practice charge against Prudential, Systems, and Control. The Union alleged that earlier in June 1989, when Ogden employees applied to Control for jobs, Control hired less than a majority of the Ogden applicants, so that Control could avoid having to recognize the Union as the bargaining representative for its employees.

On November 14, 1989, the Union filed a second charge, alleging that Systems, acting as Prudential's agent, and Control had unlawfully recognized and entered into a collective-bargaining agreement with Local 97 of the Teamsters Industrial and Allied Workers Union ("the Teamsters") to represent the cleaning employees at Gateway Center. The Union claimed the agreement was illegal because the Teamsters did not represent an uncoerced majority of Control employees. Moreover, the Union alleged that Control was obligated to bargain with it rather than with the Teamsters.

Prudential objected to the unfair labor practice charge, arguing that the complaint alleged no unlawful conduct on its part. After considering this objection, the Board's Regional Office dismissed the charge against Prudential. The Union appealed the Board's determination to the Board's General Counsel. The appeal was denied.

On May 4, 1990, after investigating all of the charges filed, the Board, through the Regional Director for Region 22, issued an administrative unfair labor practice complaint against Control and Systems that restated the charges made by the Union. On January 2, 1991, Gary Frazier of Prudential was served with a subpoena to testify at the proceedings. The Board issued Frazier's subpoena at the request of the Union. On January 3, 1991, Barbara Green of Prudential was served with a subpoena to testify. The Board issued Green's subpoena on its own behalf. On January 4, 1991, counsel for Prudential filed a petition with the Board to revoke the subpoena of Frazier. Counsel for Prudential contended that Frazier's testimony was not relevant to the proceedings as the Board's complaint did not relate to Prudential but concerned whether Control or Systems had engaged in unfair labor practices.

The Board's proceedings formally commenced on January 7, 1991. Green testified voluntarily after the Board informed counsel for Prudential that Green's examination would relate only to the circumstances surrounding her signing the May 5, 1989, proposal which awarded the cleaning contract to Control. At the conclusion of Green's testimony, the Administrative Law Judge ("ALJ") heard argument on Prudential's petition to revoke Frazier's subpoena.

Page 815

The ALJ denied the petition but said that any questioning of Frazier would be limited in scope.

Frazier, however, still refused to testify, and the Board applied to the United States District Court for the District of New Jersey, pursuant to Section 11(2) of the National Labor Relations Act, 29 U.S.C. § 161(2), for an order requiring Frazier to obey the subpoena. The district court referred the Board's application for subpoena enforcement to a United States Magistrate Judge. After considering the submissions of the parties, the magistrate judge found that to enforce the subpoena, the Board must demonstrate that the information sought from Frazier relates to a matter under investigation and is crucial to the Board's proceedings. The magistrate judge concluded that as Frazier's testimony could relate only to his employment with Prudential--which was not a party to the Board's...

To continue reading