N.L.R.B. v. Cooper Tire & Robber Co.

• Decision Date: 28 February 2006
• Docket Number: No. 04-5418.,04-5418.
• Citation: 438 F.3d 1198
• Parties: NATIONAL LABOR RELATIONS BOARD, Appellee v. COOPER TIRE & RUBBER COMPANY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

438 F.3d 1198

NATIONAL LABOR RELATIONS BOARD, Appellee v. COOPER TIRE & RUBBER COMPANY, Appellant.

No. 04-5418.

United States Court of Appeals, District of Columbia Circuit.

Argued September 20, 2005.

Decided February 28, 2006.

Appeal from the United States District Court for the District of Columbia (No. 03mc03898).

Michael McMenamin argued the cause for appellant. With him on the briefs were Nancy A. Noall and Morris L. Hawk. Jennifer J. Illingworth entered an appearance.

Stanley R. Zirkin, Assistant General Counsel, National Labor Relations Board, argued the cause for appellee. With him on the brief was Helene D. Lerner, Trial Attorney.

Before: HENDERSON, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Dissenting opinion filed by Circuit Judge GRIFFITH.

BROWN, Circuit Judge.

The threshold issue in this case is whether the United States District Court for the District of Columbia had jurisdiction to enforce subpoenas issued by the National Labor Relations Board ("NLRB") in the course of the NLRB's investigation of appellant Cooper Tire & Rubber Company ("Cooper Tire") for possible contempt of a 1992 cease-and-desist order. We conclude that the district court lacked jurisdiction, and therefore we vacate its order without addressing the other issues Cooper Tire raises.

I

In the late 1980s, activities surrounding an unsuccessful union-organizing campaign at Cooper Tire's manufacturing plant in Tupelo, Mississippi, led to an unfair labor practice charge, an NLRB finding against Cooper Tire, and a cease-and-desist order. Cooper Tire appealed the order to the Fifth Circuit, and the Fifth Circuit ruled in favor of Cooper Tire on several points, narrowing the cease-and-desist order significantly. Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1252 & n. 11, 1257 & n. 23 (5th Cir.1992). After a subsequent amendment, the Fifth Circuit's 1992 judgment barred Cooper Tire from:

(a) Maintaining and enforcing a no-solicitation rule that bans solicitation during any break times or in any break areas . . . when both the solicitor and solicitee are on break time, whether informal or scheduled, and are in a break area.

(b) Suspending, discharging, or otherwise disciplining its employees for violations of a no-solicitation rule that bans solicitation during any break times or in any break areas . . . when both the solicitor and solicitee are on break time, whether informal or scheduled, and are in a break area.

(c) Creating the impression that its employees' union activities are under surveillance.

(d) Threatening its employees with reprisals because of their union activities.

(e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. . . .

In 2002, United Steel Workers of America ("the Union") began a new campaign to unionize employees at Cooper Tire's Tupelo plant. Prior to the election, Cooper Tire showed certain videotapes to its employees. According to Cooper Tire, the employees voted against the Union, 641 to 329. The Union then filed an unfair labor practice charge, complaining that, during the union-organizing campaign, Cooper Tire prohibited leafleting activities inside the parking area of the plant, surveilled pro-union employees as they distributed leaflets, and focused a surveillance camera on these same employees. The NLRB regional office referred the matter to the NLRB's Contempt Litigation and Compliance Branch ("Contempt Branch") here in Washington, D.C., for a determination as to whether Cooper Tire had acted in contempt of the 1992 cease-and-desist order. The Contempt Branch then subpoenaed records related to security at the Tupelo plant. Cooper Tire responded to the subpoena, sending the requested records to the Contempt Branch offices in Washington, D.C., and the Contempt Branch subsequently took depositions of several security guards.

In April 2003, the Contempt Branch issued two more subpoenas, seeking the videotapes Cooper Tire showed to employees during the 2002 union-organizing campaign and information surrounding the showing of these tapes. (The subpoenas sought other items, but disputes as to those items have been resolved.) What was unusual about the Contempt Branch's new subpoenas (and what forms the basis of Cooper Tire's appeal) is that no party had ever filed a charge asserting any unlawful practice with respect to the showing of the videotapes, and the six-month period for filing such a charge had elapsed. In Cooper Tire's view, the NLRB was attempting to circumvent the statute of limitations by characterizing the videotapes as a violation of the 1992 cease-and-desist order.

Cooper Tire filed a petition with the NLRB to revoke the subpoenas, and the NLRB denied this petition on October 24, 2003. A few days later, Cooper Tire informed the Contempt Branch that it would not comply with the subpoenas, and on December 16, 2003, the Contempt Branch filed an application in the United States District Court for the District of Columbia, seeking to enforce the subpoenas. The district court referred the matter to a magistrate judge.

On January 16, 2004, Cooper Tire moved to dismiss for lack of subject matter jurisdiction, or in the alternative to transfer the matter to the Northern District of Mississippi. Cooper Tire also challenged the subpoenas on their merits, claiming they exceeded the investigatory authority of the NLRB.

On March 29, 2004, the magistrate judge ruled (1) the district court had jurisdiction, (2) venue in the District of Columbia was appropriate, and (3) the Contempt Branch had authority to issue the subpoenas. On May 10, 2004, the magistrate judge denied Cooper Tire's motion for reconsideration. On May 20, 2004, Cooper Tire appealed the magistrate judge's order to the district court, and the district court rejected the appeal on September 2, 2004, ordering Cooper Tire to comply with the March 29, 2004 order. Cooper Tire then filed this appeal.

II

29 U.S.C. § 161(2) permits the NLRB to apply to enforce a subpoena before the district court "within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business." (Emphasis added.) A very similar subpoena enforcement provision appears in the governing statutes of several other federal administrative agencies. To establish the jurisdiction of the United States District Court for the District of Columbia, the NLRB relies on a broad reading of the phrase "inquiry is carried on." The NLRB reasons that its Contempt Branch is located in the District of Columbia, and therefore the inquiry is being carried on in the District of Columbia. The NLRB's interpretation would, of course, give the NLRB the choice of any forum it liked, simply by locating its investigation in that jurisdiction, though as a practical matter the NLRB's choice is more limited because its Contempt Branch is located in the District of Columbia. In any case, the NLRB's interpretation would allow the NLRB to pick a forum convenient to its legal staff, while possibly forcing the subpoenaed party to go to court in a distant and inconvenient jurisdiction.

Cooper Tire reads the phrase "inquiry is carried on" in § 161(2) more narrowly, focusing on the subject matter of the inquiry. Cooper Tire argues the "inquiry" relates only to the union-organizing activities at its Tupelo plant, and therefore Mississippi is the "jurisdiction of which the inquiry is carried on." 29 U.S.C. § 161(2). No one is investigating anything that happened in the District of Columbia, Cooper Tire asserts; rather, the Contempt Branch just happens to be located there.

The opposite inferences the litigants draw from the language of the statute are both at least plausible, and therefore they establish one point: the phrase "within the jurisdiction of which the inquiry is carried on" is ambiguous. Certainly, if an actual hearing is underway before an administrative law judge, and evidence is being presented for the judge to examine on the record, then the location of that hearing is the location of the inquiry. FTC v. Browning, 435 F.2d 96, 99 n. 7 and 100 (D.C.Cir.1970); see also U.S. Int'l Trade Comm'n v. ASAT, Inc., 411 F.3d 245 (D.C.Cir.2005); FTC v. MacArthur, 532 F.2d 1135 (7th Cir.1976). In that case, the "inquiry" is the hearing itself, and the evidence to be offered at the hearing is the subject matter of the inquiry.

Quite a different question is presented, however, where no formal hearing is underway, and the agency has issued the subpoena as part of a preliminary investigation of possible wrongdoing. In that case, the investigators might be in one place, the matter under investigation might be in another, and the location of the "inquiry" might be one, the other, or both. Of course, the NLRB's regional offices often conduct investigations, but the NLRB has chosen to conduct contempt investigations in Washington, D.C., which in this case has placed its investigators a great distance from the matter they are investigating. Where, in those circumstances, is the inquiry "carried on"?

Browning supports a broad reading of § 161(2) that would include the location of the investigative office as one of the places where the inquiry is carried on. If a hearing located in Washington, D.C., gives the district court in Washington, D.C., jurisdiction to enforce agency subpoenas, see Browning, 435 F.2d at 100, then why not an investigating office located in Washington, D.C.? Browning, however, is not the only precedent on point, and in fact it is not the most relevant precedent. Where the inquiry is an agency investigation, not a formal hearing, we focus on, among other things, the location of the subject matter of the inquiry. FEC v. Comm. to Elect Lyndon La Rouche, 613 F.2d 849, 856-57 (D.C.Cir.1979). This...