Canova v. N.L.R.B.
| Decision Date | 24 June 1983 |
| Docket Number | 82-7395,Nos. 82-7316,s. 82-7316 |
| Citation | 708 F.2d 1498 |
| Parties | 113 L.R.R.M. (BNA) 3509, 98 Lab.Cas. P 10,270 John J. CANOVA, d/b/a Canova Moving & Storage Co., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. John J. CANOVA d/b/a Canova Moving & Storage Co., Cross-Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Mark Montobbio, San Francisco, Cal., for petitioner, cross-respondent.
Kenneth Hipp, Deputy Asst. Gen. Counsel, Washington, D.C., for respondent, cross-petitioner.
Petition for Review of a Decision of the National Labor Relations Board Region 20--Northern California.
Before WRIGHT, CANBY, and BOOCHEVER, Circuit Judges.
John J. Canova d/b/a Canova Moving & Storage Co., pursuant to 29 U.S.C. Sec. 160(f) (1976), seeks review of a supplemental decision and order of the National Labor Relations Board setting the amount of backpay due from Canova to two employees adjudged to have been discriminatorily discharged. The Board cross-applies for enforcement of its order. Canova had agreed by stipulation to comply with a Board order requiring an offer of reinstatement and payment of backpay. In the backpay proceeding, however, Canova raised defenses of earlier valid offers of reinstatement, disability during the backpay period, offset of workers' compensation benefits, and failure to seek other employment, which would have reduced or negated the backpay awards. The Board rejected all defenses. We find the Board's actions proper and accordingly enforce the Board's order.
On January 31, 1977, the Board issued its Decision and Order in the unfair labor practice proceeding finding that Canova had violated 29 U.S.C. Sec. 158(a)(1) & (3) (1976) by discriminatorily discharging O.D. Phillips and Tim Davis. Phillips and Davis had been employed at Canova as driver and helper, respectively, until their discharge on January 5, 1976. The Board's order required Canova to offer full reinstatement to Davis and Phillips and to make them whole for any loss of earnings they might have suffered as a result of their discharge. On April 14, 1978, Canova and the Board's General Counsel entered into a stipulation that Canova would comply with the Board's order. Accordingly, the Board's Regional Director instituted the proceeding now under review and issued a backpay specification setting forth amounts due to the employees. The award to Phillips was calculated over the period from January 5, 1976 to November 15, 1977, when he was declared permanently disabled. For Davis, the backpay period was from January 5, 1976 to April 18, 1978, when the Board determined that Canova had made a valid offer of reinstatement.
In answer to the backpay specification, Canova raised a number of defenses which would negate or reduce its backpay liability. Canova claimed:
(1) that the backpay period should have been cut off in late January or early February 1976 because valid offers of reinstatement were made to both employees; and
(2) that Phillips should be denied all backpay because he was disabled throughout the backpay period and unable to accept reinstatement; or alternatively (3) that Phillips' backpay award should be reduced by the amount of disability payments Phillips had received from the State of California; and
(4) that the backpay due both employees be denied or reduced because both had failed to seek diligently for other employment. 1
A hearing was held before an Administrative Law Judge to establish the amount of the backpay award. The ALJ issued a decision rejecting Canova's defenses except that he reduced Phillips' backpay award by the amount he had received as permanent disability compensation. Both Canova and the General Counsel filed timely exceptions to the ALJ's decision. In addition to the defenses raised in answer to the backpay specification, Canova asserted that he had been denied due process by the revocation of a subpoena for certain documents of the California Employment Development Department and by the ALJ's refusal to continue the hearing and issue a subpoena for a deposition transcript in the files of the California Workers' Compensation Appeals Board. The General Counsel excepted to that part of the ALJ's decision deducting Phillips' permanent disability compensation from his backpay award.
On April 30, 1982, the Board issued a supplemental decision and order affirming the ALJ's findings and conclusions and adopting his recommended order, with one modification. The Board found that Phillips' award should not have been reduced by the amount of his permanent disability compensation. Accordingly the Board ordered Canova to pay $12,744.01 plus interest to Phillips and $7,953.26 plus interest to Davis.
Canova now petitions this Court to review the supplemental decision and order of the Board, asserting all defenses and exceptions alleged below. The Board cross-petitions for enforcement of its order.
Canova had subpoenaed records of the California Employment Development Department concerning both employees' efforts to seek interim employment during the backpay period. The Employment Development Department petitioned the Board to revoke the subpoena and the Board complied. In attempting to support its contention that Phillips was permanently disabled throughout the backpay period, Canova had also subpoenaed Phillips and requested that he produce all documents relating to the hearings on his workers' compensation disability claims. In cross-examination Canova's counsel learned that Phillips had been deposed for that hearing but did not have a copy of the deposition. Canova requested a subpoena allowing Canova to obtain a copy from the California Workers' Compensation Appeals Board or, in the alternative, requested that the record be kept open until the deposition could be obtained. The ALJ refused both requests.
The Employment Development Department petitioned to have the subpoena of its records revoked on the basis of a statutory privilege contained in Cal.Unemp.Ins.Code Secs. 1094, 2111 (Deering 1983). 2 California has a policy of keeping the records confidential to ensure truthful reporting on the part of the employee. Canova contends that the Board's revocation of the subpoena at the instance of the Employment Development Department deprived it of evidence relevant to whether Phillips and Davis sought interim employment.
The Board's decisions regarding enforcement of subpoenas are discretionary. NLRB v. Adrian Belt Co., 578 F.2d 1304, 1310 (9th Cir.1978). In exercising that discretion, however, the Board must comply as far as is practicable with the rules of evidence applicable in federal courts. Thus, unless the special characteristics of an administrative hearing require otherwise, the Board may revoke a subpoena only if to do so would be proper in federal district court. General Engineering, Inc. v. NLRB, 341 F.2d 367, 374 (9th Cir.1965). Such revocation generally requires a valid evidentiary objection to the material sought under the subpoena. NLRB v. Seine & Line Fishermen's Union, 374 F.2d 974, 980 (9th Cir.), cert. denied, 389 U.S. 913, 88 S.Ct. 239, 19 L.Ed.2d 261 (1967).
This case is governed by NLRB v. Adrian Belt Co., 578 F.2d 1304 (9th Cir.1978), wherein this court upheld the revocation of a subpoena for California unemployment and disability records. The state agency subject to the subpoena had invoked the same statutory privilege under litigation in the present case. This court held that the claimed privilege "may constitute a valid reason for the Board to revoke or decline to enforce a subpoena." 578 F.2d at 1310. The Adrian Belt court also found that the subpoenaed material was of minimal probative value and that the employers were not prejudiced by their inability to obtain the records. Id.
The Board acted within its discretionary power in revoking the subpoena. It did so pursuant to the same statutory privilege deemed in Adrian Belt to be a proper basis for revocation. 3 Further, the Board found, as in Adrian Belt, that the material would have been of small probative value and that Canova was not significantly prejudiced by the revocation.
Canova sought to use the records as evidence of lack of diligence in seeking interim employment. As the Board determined, however, those records would only show what efforts the employees actually reported to the Employment Development Department and not necessarily what was actually done. This evidence would have had its most significant value in impeaching the testimony of the employees concerning their efforts in seeking employment. Canova had in its possession Board compliance documents and statements made by the employees concerning the job searches that contained evidence analogous to the Employment Development Department reports. Given Canova's opportunity to cross-examine Phillips and Davis on the basis of these materials, Canova was not prejudiced by the revocation.
When Canova found Phillips did not have the deposition taken during the Workers' Compensation Appeals Board proceeding, Phillips' attorney in that proceeding was contacted. The attorney was able to produce ten pages or roughly twenty percent of that deposition. These pages were given to Canova's counsel. Canova's counsel stated that these pages contained relevant material and indicated that the entire deposition would be very probative on the issue of Phillips' disability. Counsel did not, however make any use at the hearing of the pages produced.
Canova requested a subpoena to the Workers' Compensation Appeals Board to obtain the deposition. The ALJ refused. The National Labor Relations Board contends that whether to issue a subpoena is a...
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