Drukker Communications, Inc. v. N.L.R.B.

• Decision Date: 25 February 1983
• Docket Number: No. 81-2139,81-2139
• Citation: 700 F.2d 727
• Parties: 116 L.R.R.M. (BNA) 2077, 226 U.S.App.D.C. 156, 96 Lab.Cas. P 14,109 DRUKKER COMMUNICATIONS, INC., and its wholly owned subsidiary, The Daily Advance, Inc., Petitioner v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 727

700 F.2d 727

116 L.R.R.M. (BNA) 2077, 226 U.S.App.D.C. 156,

96 Lab.Cas. P 14,109

DRUKKER COMMUNICATIONS, INC., and its wholly owned

subsidiary, The Daily Advance, Inc., Petitioner v. NATIONAL LABOR RELATIONS BOARD.

No. 81-2139.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 6, 1982.

Decided Feb. 25, 1983.

Petition for review of an order of National Labor Relations Board/cross-application for enforcement.

Henry I. Hamburger for petitioner.

Lawrence Song, Atty., N.L.R.B., Washington, D.C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., was on the brief, for respondent. William R. Stewart, Atty., N.L.R.B., Washington, D.C., also entered an appearance for respondent.

Before TAMM, WILKEY and SCALIA, Circuit Judges.

Opinion for the court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

Drukker Communications, with its wholly owned subsidiary, The Daily Advance, Inc., appeals under 29 U.S.C. Sec. 160(f) (1976) the National Labor Relations Board's adverse determination and order in an unfair labor practice action under 29 U.S.C. Sec. 158(a)(1), (5) (1976). The case presents the issue of The basic facts, which will be supplemented during the course of our discussion, are as follows: On May 3, 1974, Newark Mailers' Union Local 11 demanded that Union Building and Investment Company (UBI), then owner of The Daily Advance, recognize it as the collective bargaining agent for the newspaper's circulation department employees. UBI declined recognition, and the union petitioned for certification by the NLRB. On May 28, representatives of the union and UBI met with George H. Abrams of the NLRB's Regional Director's Office and concluded a consent election agreement. The election was held on June 21, and the tally of unchallenged ballots showed that the union had lost by a 12-to-10 vote. The employer challenged five ballots, alleging that they had been cast by "motor route carriers" who were independent contractors and were outside the stipulated unit. After litigation which reached the Board level, the challenge was ultimately rejected and the ballots were opened and counted, producing a 15-to-12 union victory. The union was certified on September 7, 1976.

the Board's power to withhold relevant testimony of one of its employees, and a number of issues regarding sufficiency of the complaint and factual support for the Board's determination.

Between the time of the election and the certification, UBI changed its name to Drukker Communications, Inc., and sold all assets and liabilities of the newspaper to its wholly owned subsidiary, The Daily Advance, Inc. There is no indication in the record, nor has it been alleged, that the change was prompted by unionization of the company's work force, or was anything other than a bona fide business decision. Either before or after the certification (for certain items the timing is in dispute) The Daily Advance unilaterally made a number of changes in its operations: It moved its mailroom from Dover to Roxbury, New Jersey, some eight miles away. It gradually phased out "motor route carriers" (who delivered papers owned by the newspapers for a fixed stipend) largely in favor of "delivery contract holders" (who bought papers and resold them at a profit, had the right to charge their customers a service fee, and in addition received a fixed stipend to assure profitability). It replaced the employee drivers of company-owned trucks with independent "hauling contract holders"; replaced district advisors with district sales representatives; and reduced a mail clerk from full-time to part-time status.

After certification, the company declined to bargain with the union. On February 14, 1977, the Board issued an unfair labor practice complaint against "Union Building and Investment Company T/A [trading as] The Daily Advance," alleging refusal to recognize and bargain collectively with the union. An amendment to the complaint added the charges of changing terms and conditions of work without prior consultation with the union and bargaining directly with employees. In the proceedings before an administrative law judge (ALJ) the attorney for the companies raised all of the arguments that will be discussed below. The ALJ rejected them; he found that the companies had committed the unfair labor practices charged, and ordered them to cease and desist from such practices and to bargain concerning the unremedied effects of past violations. His opinion amended the name of respondent to read "Drukker Communications, Inc., and its wholly owned subsidiary The Daily Advance, Inc., formerly Union Building Investment Company T/A The Daily Advance." The ALJ's findings, conclusions and order were adopted by the Board with one modification--that the employer need not bargain over the move of the mail room, since the statute of limitations had run on that action. Drukker Communications, Inc., 258 N.L.R.B. 734 (1981).

SUBPOENA OF BOARD EMPLOYEE

Petitioner argues that the certification was invalid because the motor route carriers, whose challenged ballots tipped the scales in the election, were excluded from the unit by the May 28 stipulation. The basis of this contention is that the phrase The National Labor Relations Act provides that "[t]he Board, or any member thereof, shall upon application of any party to [its] proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses ... in such proceedings ...." On application of the subpoenaed party, "the Board shall revoke ... such subpena if in its opinion the evidence whose production is required does not relate to ... any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required." 29 U.S.C. Sec. 161(1) (1976). Although the statute explicitly permits the quashing of subpoenas only for irrelevance or lack of particularity, it does not explicitly exclude other grounds, and the availability of other grounds must certainly be implied--for example, to take an extreme instance, unwarranted interference with First Amendment rights. Thus, the Board's delegation to administrative law judges of its subpoena authority properly (if somewhat illiterately) adds to the two grounds set forth in the statutory authority to quash "if for any other reason sufficient in law the subpena is otherwise [sic ] invalid." 29 C.F.R. Sec. 102.31(b) (1981). Besides the subpoena section of the Act, two other provisions of law are pertinent. The formal adjudication provision of the Administrative Procedure Act, 5 U.S.C. Sec. 556(d) (1976), which governed this proceeding, see 5 U.S.C. Sec. 554(a) (1976), provides that "[a] Even in courts of law, relevant evidence sought from government officers is sometimes excluded, and a subpoena for it denied, because of a well founded claim that its production would, in one respect or another, harm the public interest:

"[a]ll circulation department employees, including drivers," contained in that portion of the stipulation describing the agreed-upon collective bargaining unit, was not intended to cover motor route carriers. Jt.App. at 53. The language bears the Board's reading, and we would not normally disturb the agency's reasonable judgment on a matter of interpretation. The dispute, however, centers about an alleged understanding or oral agreement at the time of the stipulation conference, to the effect that motor route carriers were not meant to be included in the unit. ¹ On the basis of the evidence presented (consisting of conflicting testimony by the company's lawyer on the one hand and the union's lawyer on the other) the ALJ's judgment that no oral understanding existed was also well within the bounds of the reasonable. Petitioner asserts, however, that all of the relevant evidence was not considered, because of the ALJ's refusal to permit subpoena of George H. Abrams. Abrams was a Board employee in Region 22. He had been present at the conference which produced the stipulation, and had signed the document itself, as "Board Agent," below a line reading "Recommended:". Jt.App. at 53. Petitioner sought from the General Counsel the permission for Abrams' testimony required by the Board's rules, 29 C.F.R. Sec. 102.118(a)(1) (1981). ² When permission was refused, petitioner subpoenaed Abrams; the ALJ denied the motion to compel his testimony, and granted the General Counsel's motion to quash the subpoena party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts." NLRB unfair labor practice proceedings are also governed by another provision which, if not unique, is at least extraordinary, requiring that they "shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure ...." 29 U.S.C. Sec. 160(b) (1976).

Such, for example, are claims that the information sought would disclose confidential informants (Mitchell v. Bass, 252 F.2d 513 [ (8th Cir.1958) ], state secrets (United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 [ (1953) ], military secrets (United States v. Reynolds, supra), or mental processes of those engaged in investigative or decisional functions (United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 [ (1941) ]; Appeal of Securities & Exchange Commission, 226 F.2d 501, 519 [ (6th Cir.1955) ].

General Engineering, Inc. v. NLRB, 341 F.2d 367, 375 (9th Cir.1965). This court has applied such a doctrine to district court testimony in a factual context similar to that before us. See International Ass'n of Machinists & Aerospace Workers v. National Mediation Board, 425 F.2d 527, 538-41 (D.C.Cir.1970). There is room for the...