N.L.R.B. v. Steinerfilm, Inc.

Decision Date08 March 1983
Docket NumberNo. 81-1437,81-1437
Citation702 F.2d 14
Parties112 L.R.R.M. (BNA) 3030, 96 Lab.Cas. P 14,125 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STEINERFILM, INC., Respondent.
CourtU.S. Court of Appeals — First Circuit

Peter Ames Eveleth, Asst. Gen. Counsel, Washington, D.C., for Contempt Litigation, and Ruah Donnelly Lahey, Washington, D.C., on petitioner's motion for post-judgment discovery.

Michael B. Keating, Joseph W. Ambash, Kevin J. Fitzgerald, and Foley, Hoag & Eliot, Boston, Mass., on opposition to motion for post-judgment discovery.

Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

The National Labor Relations Board seeks an order from this court for discovery against Steinerfilm, Inc., to help it to decide whether Steinerfilm is complying with the Board's order, enforced in NLRB v. Steinerfilm, Inc., 669 F.2d 845 (1st Cir.1982). Initially, we denied the Board's motion, stating that we were

not persuaded that the case law supports the issuance of such an order absent either a contempt or an unfair labor practice proceeding, or a showing that a company is attempting to avoid financial responsibility for back pay.

At the Board's request, we granted a rehearing, and, with its help (and that of the Solicitor General) we surveyed relevant enforcement practice in other agencies. We conclude that our initial denial of the Board's motion was correct. We do not doubt our power to take appropriate action to see that our "NLRB" decrees are enforced. E.g., NLRB v. Union Nacional de Trabajadores, 611 F.2d 926 (1st Cir.1979). But we do not believe it appropriate, as a matter of course, to issue discovery orders for the Board, before the Board has brought a contempt proceeding, and in the absence of any specific statutory authority, any specific authority arising from the decree itself, or some special circumstance. We reach this conclusion for the following reasons.

First, the Board has specific statutory authority to obtain the information it seeks in other ways. Section 11 of the National Labor Relations Act, 29 U.S.C. Sec. 161, grants the Board broad information gathering powers. It can subpoena witnesses and documents, "administer oaths," "examine witnesses, and receive evidence" in any investigation "which, in the opinion of the Board," is "necessary and proper for the exercise" of its power to prevent unfair labor practices. Although Section 10(e) of the Act, 29 U.S.C. Sec. 160(e), makes court jurisdiction "exclusive" once review is sought, that word seems designed to prevent the Board from revising its order while under review; it does not appear to prevent the Board from independently investigating possible contempt and it certainly does not do so where, as here, the contempt in and of itself would constitute a separate unfair labor practice. In fact, the Supreme Court has expressly sanctioned the use of statutory investigation power to gather evidence of contempt, in a case in which similar "exclusive" jurisdiction was vested in the Court of Appeals. United States v. Morton Salt Co., 338 U.S. 632, 640, 70 S.Ct. 357, 362, 94 L.Ed. 401 (1950) (Federal Trade Commission) ("May not the Commission, in view of its residual duty of enforcement, affirmatively satisfy itself that the decree is being observed?"). Moreover, if necessary, the Board, like other agencies, can provide for "visitorial" (information gathering) authority in its decrees. And, of course, court authorized discovery is available once a charge of contempt has been filed. NLRB v. Deena Artware, Inc., 361 U.S. 398, 80 S.Ct. 441, 4 L.Ed.2d 400 (1960); Bethlehem Shipbuilding Corp. v. NLRB, 120 F.2d 126 (1st Cir.1941).

Second, uniform agency practice runs contrary to the NLRB's position. Our survey of practice by the SEC, FTC, ICC, Department of Justice (Antitrust Division), and the Department of Labor reveals that in comparable instances--where an agency has obtained a court order or decree--the agency does not obtain comparable court-ordered discovery prior to the filing of a contempt charge and has never done so. Typically the agency investigates possible contempt of a court decree either by using its independent statutory information gathering authority, or by exercising visitorial rights granted by the court decree itself, or by using court-ordered discovery after filing a contempt charge. For the most part, applicable information gathering statutes give other agencies powers roughly similar to those that Section 11 gives the NLRB. 15 U.S.C. Sec. 77s(b) (Securities Act of 1933) (language substantially similar to Sec. 11); 15 U.S.C. Sec. 78u(b) (Securities Exchange Act of 1934) (same); 15 U.S.C. Sec. 49 (FTC Act) (same); 7 U.S.C. Sec. 2046 (Department of Labor, Farm Labor Contractor Registration Act) (same); 33 U.S.C. Sec. 927(a) (Department of Labor, Longshoremen's & Harbor Workers' Compensation Act) (same); 15 U.S.C. Sec. 1312 (Department of Justice, Antitrust Division) (civil investigative demands); 29 U.S.C. Sec. 211 (Department of Labor, Fair Labor Standards Act); 29 U.S.C. Sec. 521 (Department of Labor, LMRDA); 30 U.S.C. Sec. 813 (Department of Labor, Federal Mine Safety & Health Act of 1977). Moreover, other agencies typically face the same "practical obstacle" in gathering information that the NLRB complains of here, namely the fact that the agency, when meeting resistance, must apply to a district court to enforce its subpoenas. 15 U.S.C. Sec. 77t(c) (Securities Act of 1933); 15 U.S.C. Sec. 78u(e) (Securities Exchange Act of 1934); 15 U.S.C. Sec. 49 (FTC Act); 15 U.S.C. Sec. 1314(a) (Department of Justice, Antitrust Division); 29 U.S.C. Sec. 209 (Department of Labor, Fair Labor Standards Act) (reference to 15 U.S.C. Sec. 49); 7 U.S.C. Sec. 2046 (Department of Labor, Farm Labor Contractor Registration Act) (same); 29 U.S.C. Sec. 521(b) (Department of Labor, LMRDA) (same); 33 U.S.C. Sec. 927(b) (Department of Labor, Longshoremen's & Harbor Workers' Compensation Act); 30 U.S.C. Sec. 813(d) (Department of Labor, Federal Mine Safety & Health Act of 1977). The Board was invited to present to us any instance it could find in which another agency used court-ordered discovery in a comparable circumstance to investigate contempt before filing a charge. Presumably it could find none.

Third, because other agencies face similar problems arising under roughly similar statutes, we fear the precedential effect of an order authorizing pre-charge court-ordered investigatory discovery as a matter of course. If the Board can use discovery in the Court of Appeals to investigate possible contempt of its decree here, why could other agencies not do the same with respect to possible contempt of district court orders? Yet, to ask a district court to issue discovery to investigate contempt without a charge before it or a provision in the decree authorizing it or some specific statute that provides for it is apparently unprecedented. And, it would seem to be a significant expansion of agency investigatory powers. Those powers, while typically broad, see United States v. Morton Salt Co., 338 U.S. at 640-44, 70 S.Ct. at 362-65 are nonetheless subject to certain congressionally-imposed checks, such as the requirement of district court approval for subpoena enforcement when the agency proceeds under such a statute.

Fourth, to allow pre-charge discovery would create practical problems. For one thing, what standard would govern the use of such discovery? Would the Board obtain discovery on the basis of "suspicion," "reasonable suspicion," "cause"? Would the respondent be allowed discovery in turn? The creation of such standards is a near virgin enterprise. The stronger the standard, the less benefit the agency would derive from the pre-charge route; the weaker the standard, the more frequently the agency is likely to resort to it. For another thing, how are the details of discovery to be handled and how are disputes to be resolved? Should we appoint a special master? Should we ask the district court to supervise the process? These questions are not unanswerable; indeed, in appropriate cases we can and should decide them. Yet, to open an information gathering alternative that might require this court frequently to deal with these problems seems undesirable, for an appellate court is not institutionally well suited to manage information gathering efforts. While this court can deal with such a problem occasionally, its use as a matter of course (as could well develop should we provide our explicit sanction) is impractical and undesirable. And, while the Board to date has apparently been most abstemious in its requests for such discovery, how will it, and other agencies, react once the practice is expressly approved?

Fifth, the...

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  • NLRB v. Fortune Bay Resort Casino
    • United States
    • U.S. District Court — District of Minnesota
    • February 25, 2010
    ...or in question." Id. § 161(1); see, e.g., N.L.R.B. v. Interstate Material Corp., 930 F.2d 4, 6 (7th Cir. 1991); N.L.R.B. v. Steinerfilm, Inc., 702 F.2d 14, 15 (1st Cir.1983). This broad subpoena power enables the Board "to get information from those who best can give it and who are most int......
  • GRAY BY GRAY v. Romeo
    • United States
    • U.S. District Court — District of Rhode Island
    • October 17, 1988
    ...not rely on it. See, e.g., Bachelder v. Communications Satellite Corp., 837 F.2d 519, 523 n. 5 (1st Cir.1988); N.L.R.B. v. Steinerfilm, Inc., 702 F.2d 14, 17 (1st Cir.1983). 3 The Doe court concluded its opinion by stating that the Guardian Ad Litem and state agencies "acted in good faith a......
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    • April 12, 1991
    ...discovery aimed at finding out whether one of our orders is being violated. However, for reasons explained in NLRB v. Steinerfilm, Inc., 702 F.2d 14 (1st Cir.1983), and nowhere answered in the Board's brief in opposition to the magistrate's recommendation, it is a power to be exercised spar......
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    ...by a court of appeals. See N.L.R.B. v. Interstate Material Corp., 930 F.2d 4, 5 (7th Cir. 1991); see also N.L.R.B. v. Steinerfilm, Inc., 702 F.2d 14, 15 (1st Cir. 1983) (Breyer, J.) (confirming NLRB's authority to "independently investigat[e] possible contempt" especially where "the contemp......

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