N.L.R.B. v. A-Plus Roofing, Inc., A-PLUS

• Decision Date: 28 October 1994
• Docket Number: A-PLUS,No. 90-70015,90-70015
• Parties: 147 L.R.R.M. (BNA) 2662, 129 Lab.Cas. P 11,217 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.ROOFING, INC.; Phyllis Wesson, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1410

39 F.3d 1410

147 L.R.R.M. (BNA) 2662, 129 Lab.Cas. P 11,217

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A-PLUS ROOFING, INC.; Phyllis Wesson, Respondents.

No. 90-70015.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 1994.

Decided Oct. 28, 1994.

William Wachter, Asst. Gen. Counsel and Stanley R. Zirkin, Deputy Asst. Gen. Counsel, N.L.R.B., Washington, DC, for petitioner.

Diane Marie Amann, San Francisco, CA, for respondent.

Petition for Adjudication in Civil and Criminal Contempt.

Before: POOLE, BEEZER and T.G. NELSON, Circuit Judges.

POOLE, Circuit Judge:

This case arises out of years of effort by the NLRB and Roofers' Local Union No. 40 ("the Union") to obtain documents from an employer relevant to the Union's collective bargaining agreement. The failure to produce documents has resulted in civil and criminal contempt proceedings, first against the employer, and later against the employer's secretary, Phyllis Wesson.

We appointed a special master, U.S. Magistrate F. Steele Langford, to conduct the contempt trial, and must now rule on his recommendations. We approve the magistrate's recommendation that the employer, A-Plus Roofing, be held in civil contempt. However, because the magistrate was statutorily barred from assuming jurisdiction over the criminal portion of this case, we cannot rule on his criminal recommendations. Instead, we must start from scratch and refer the matter to a new special master.

I

Respondent A-Plus Roofing is or was a small roofing construction firm. ¹ A-Plus was principally owned and operated by Carey Fabiani. At all times relevant, Fabiani's wife, Phyllis Wesson, was the corporate secretary of A-Plus.

On May 20, 1988, John Carnagey, the attorney for Roofers' Local Union No. 40 ("the Union"), mailed a letter to A-Plus, addressed to Fabiani, requesting certified payroll records for nine A-Plus projects in the last two years. The Union requested these documents because it was concerned about A-Plus' compliance with their collective bargaining agreement. Carnagey received no response. He therefore filed an unfair labor practice ("ULP") charge with the NLRB on June 14, 1988, alleging a violation of Sec. 8(a)(5) of the NLRA. See NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495 (1967) (holding that duty to bargain collectively includes duty to furnish information relevant to the collective bargaining agreement). On July 18, Matthew Aronica, attorney for A-Plus, responded to Carnagey's letter by providing a list of hours for 20 employees. Carnagey considered this response inadequate, and the NLRB proceedings went forward. No further compliance with the request was forthcoming.

In November, a hearing was held before an administrative law judge, and on February 8, the ALJ issued a decision and order finding that A-Plus had committed a ULP. The ALJ ordered A-Plus to produce the requested documents.

When no compliance was forthcoming, the NLRB issued a July 11, 1989 order and decision, adopting the ALJ's decision in its entirety. Following this order, Carnagey again wrote A-Plus, to the attention of Phyllis Wesson, first on July 19, and then on October 30, attaching his original May 20 request and demanding production of documents. Neither A-Plus nor Wesson responded.

The NLRB next sought enforcement of its order, and this court issued an order enforcing the NLRB's order on July 12, 1990. The order was directed to A-Plus and its officers, and reiterated the remedies the ALJ had first ordered seventeen months earlier.

Meanwhile, on February 16, 1989, pursuant to a search warrant, the California Employment Development Department ("EDD") had seized 17 boxes of business documents from A-Plus' offices. EDD seized these documents pursuant to an investigation into failure to pay employment taxes. Over the next two years, Wesson and A-Plus had some access to these documents, though the parties disagree vigorously over just how much.

NLRB Acting Compliance Officer John O'Hearn contacted A-Plus' attorney Aronica in September, 1990, seeking compliance with the Ninth Circuit's order. Aronica replied that he would "consult with [his] client" and subsequently submitted a declaration, purportedly signed by Wesson as corporate secretary, explaining that document production had not been forthcoming because efforts to produce them had been "exasperated" by EDD's possession of all documents.

In April 1991, having failed to obtain compliance, the NLRB petitioned the Ninth Circuit to hold A-Plus in civil contempt. A-Plus filed a response, verified by corporate secretary Phyllis Wesson, stating as an affirmative defense the fact that EDD had relevant documents but had not responded to requests for production. On June 27, a panel of this court referred the matter to F. Steele Langford, Chief Magistrate for the Northern District of California, for selection of a magistrate to serve as special master. The special master was to address pretrial matters, hold evidentiary hearings regarding the civil contempt motion, and then submit a report to the Ninth Circuit. Langford selected himself.

After further investigation revealed that A-Plus might have had access to the requested documents throughout the previous three years, and that Phyllis Wesson had on numerous occasions allegedly represented otherwise, the NLRB sought to add criminal contempt charges against both A-Plus and Wesson. On January 8, 1992, a panel of this court, by a 2-1 vote, referred the criminal contempt charge to Langford under the same terms as the original June 27 order.

Langford appointed counsel for Wesson and consolidated the two proceedings. He also appointed two NLRB attorneys, Stanley Zirkin and Joan Sullivan, to prosecute. On the day the trial was to begin, Wesson produced numerous documents which allegedly had been found over the weekend, and brought a motion to dismiss based on substantial compliance. This motion was denied, and three days of hearings were held. The special master then filed recommendations with this court, recommending that both A-Plus and Wesson be found in contempt.

Wesson raises a host of objections to the magistrate's recommendations. Most of these we need not consider, because a few are dispositive. We agree with Wesson both that her contempt prosecution was never properly authorized, and that the magistrate to whom we referred her case lacked jurisdiction to try her. Accordingly, we strike the magistrate's criminal contempt recommendations, initiate contempt proceedings, and refer this case to the Northern District of California for hearing before a properly selected special master. We also enter civil contempt sanctions against A-Plus.

II

A

The validity of the magistrate's criminal jurisdiction in this case hinges on the construction of two statutes, 28 U.S.C. Sec. 636 and 18 U.S.C. Sec. 3401. Section 636, the general jurisdictional statute for federal magistrates, provides in pertinent part:

(a) Each United States magistrate serving under this chapter shall have within the territorial jurisdiction prescribed by his appointment--

. . . . .

(3) the power to conduct trials under section 3401, title 18, United States Code, in conformity with and subject to the limitations of that section

. . . . .

(b) ...

. . . . .

(3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.

The NLRB contends that jurisdiction was proper under the Sec. 636(b)(3) catchall provision. It argues that because the ultimate decision will still be made by an Article III judge, the referral to the magistrate was necessarily lawful. In support of this reasoning, the Board relies on United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), which upheld the constitutionality of another part of Sec. 636(b). The Court in Raddatz concluded that a magistrate could constitutionally preside over a suppression hearing and make recommendations because the authority to make the final determination remained with an Article III judge. Id. at 681-84, 100 S.Ct. at 2415-16. Similarly, here the magistrate served only as a factfinder, while the ultimate decision rests with us.

At most, however, Raddatz arguably compels the conclusion that our referral was constitutional. But federal magistrates are creatures of statute, and so is their jurisdiction. We cannot augment it; we cannot ask them to do something Congress has not authorized them to do. We need not and must not reach the constitutional question if we can first determine that the magistrate had no statutorily-created jurisdiction to handle the referral we gave it. As to that question, Raddatz is silent.

While the NLRB would have us find jurisdiction under Sec. 636(b)(3), both the statute and precedent dictate otherwise. Our search for meaning must begin with the language of the statute itself. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). We note that Sec. 636(a)(3) expressly addresses the issue of magistrates' criminal trial jurisdiction, subject to certain conditions. It is a well-settled canon of statutory interpretation that specific provisions prevail over general provisions. Markair, Inc. v. CAB, 744 F.2d 1383, 1385 (9th Cir.1984). It is an equally well-settled canon that "[i]n construing a statute we are obliged to give effect, if possible, to every word Congress used." Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979). If we read the Sec. 636(b)(3) catchall section as including those criminal trials that Sec. 636(a)(3) excludes, we nullify Sec. 636(a)(3)'s exclusions and violate each of these canons. Cf. Peretz v. United States, 501 U.S. 923, 955, 111 S.Ct. 2661, 2679, 115 L.Ed.2d 808 (1991) (Scalia, J. dissenting) ("By specifically authorizing magistrates to perform duties in civil and misdemeanor...