Nat'l Labor Relations Bd. v. Lear Corp.

• Decision Date: 10 May 2016
• Docket Number: CIVIL ACTION NO. 16-00061-WS-N
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LEAR CORPORATION EEDS and INTERIORS, Respondent.
• Court: U.S. District Court — Southern District of Alabama

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LEAR CORPORATION EEDS and INTERIORS, Respondent.

CIVIL ACTION NO. 16-00061-WS-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

May 10, 2016

REPORT AND RECOMMENDATIONS

Under 29 U.S.C. § 161(2), the National Labor Relations Board ("the Board") has filed with the Court two applications to order enforcement of certain administrative subpoenas it has served on Respondent Lear Corporation EEDS and Interiors ("Lear"). (Doc. 1; Doc. 7 at 3 - 12, 315 - 414). Lear has timely filed responses in opposition to the applications (Doc. 7 at 101 - 308; Docs. 9, 10), and the Board has timely filed replies (Doc. 7 at 415 - 419; Doc. 12) to the responses.¹ A hearing on the applications was held before the undersigned on Friday, April 15, 2016. Present were Alexandra K. R. Schule, Esq., counsel for the Board, and J. Trent Scofield, Esq. and Kathryn M. Willis, Esq., counsel forLear.

The applications are now under submission, are ripe for disposition, and under S.D. Ala. GenLR 72(b), have been referred to the undersigned Magistrate Judge for entry of a recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), and S.D. Ala. GenLR 72(a)(1)(S).² Upon consideration, the undersigned finds that Lear's objections to enforcement are due to be OVERRULED, that the Board's applications for enforcement (Doc. 1; Doc. 7 at 3 - 12, 315 - 414) are due to be GRANTED, that Lear's alternate requests for entry of a protective order are due to be DENIED, and that the Board's request for an award of attorneys' fees incurred in bringing these applications is due to be DENIED.

I. Background

The Board requests that this Court issue an order enforcing a total of ten administrative subpoenas, collectively issued in three separate cases against Lear pending before the Board. Board Case No. 15-CA-140072 was initiated against Lear by the filing of a formal charge on November 3, 2014. (Doc. 7 at 316). This charge has been amended on several occasions, with a third amended charge being filed on January 26, 2016 (id. at 129 - 130), alleging twelve alleged incidents of improper conduct by Lear against certain employees for their unionactivities, either in the form of retaliation, interrogation, or surveillance, occurring in June through October 2014. The following subpoenas have been issued in Case No. 15-CA-140072:

1. Subpoena Duces Tecum No. B-1-KFU8N5, issued December 17, 2014, "requires the production of the books, records, documents, and other materials within the possession or under the control of Lear Renosol Selma Manufacturing Facility, wherever such documents may be located," which concern each of the charged incidents. (Id. at 324 - 331).

2. Subpoena Ad Testificandum No. A-1-KGCOJP, issued December 18, 2014, requires Kathy Jones, a Lear safety supervisor, to appear before a Board representative to testify concerning her knowledge of the charged incidents at Lear. (Id. at 338 - 340).

3. Subpoena Ad Testificandum No. A-1-KGDB47, issued December 18, 2014, requires Matthew Robinson, a Lear supervisor, to appear before a Board representative to testify concerning his knowledge of the charged incidents at Lear. (Id. at 347 - 349).

4. Subpoena Ad Testificandum No. A-1-KGDH05, issued December 18, 2014, requires John Smith, a Lear supervisor, to appear before a Board representative to testify concerning his knowledge of the charged incidents at Lear. (Id. at 356 - 358).

5. Subpoena Ad Testificandum No. A-1-KGDVG5, issued December 18, 2014, requires Tim Brugger, a Lear superintendent, to appear before a Boardrepresentative to testify concerning his knowledge of the charged incidents at Lear. (Id. at 363 - 365).

6. Subpoena Ad Testificandum No. A-1-KGEB05, issued December 18, 2014, requires Connie Messer, a Lear human resources supervisor, to appear before a Board representative to testify concerning her knowledge of the charged incidents at Lear. (Id. at 370 - 372).

7. Subpoena Ad Testificandum No. A-1-KGEOUH, issued December 18, 2014, requires Cindy Bozeman, a Lear materials supervisor, to appear before a Board representative to testify concerning her knowledge of the alleged incidents at Lear. (Id. at 377 - 379).

8. Subpoena Ad Testificandum No. A-1-KGD9T9, issued December 18, 2014, requires Mike Walkowski, a Lear supervisor, to appear before a Board representative to testify concerning his knowledge of the alleged incidents at Lear. (Id. at 384 - 386).

Board Case No. 15-CA-146313 was initiated against Lear by the filing of a formal charge on February 12, 2015. (Doc. 1-1 at 2). The charge has been twice amended, with a second amended charge filed January 26, 2016, listing seven alleged incidents of improper conduct by Lear against its employees in relation to their union activities, occurring in January and February 2015. (Id. at 7 - 8). Subpoena Duces Tecum No. B-1-NVOXOL, issued against Lear in Case No. 15-CA-146313 on August 18, 2015, "requires the production of the books, records, documents, and other materials within the possession or under the control ofLear Renosol Selma Manufacturing Facility, wherever such documents may be located," which concern each of the charged incidents. (Id. at 17 - 25)

Board Case No. 15-CA-148040 was initiated against Lear by the filing of a formal charge on March 12, 2015. (Id. at 10). The charge has been twice amended, with a second amended charge filed January 26, 2016, listing four alleged incidents of improper conduct, occurring in March 2015, by Lear against certain employees for their union activities, either in the form of interrogation or retaliation. (Id. at 14). Subpoena Duces Tecum No. B-1-NVG15D was issued against Lear in Case No. 15-CA-148040, on August 18, 2015, and "requires the production of the books, records, documents, and other materials within the possession or under the control of Lear Renosol Selma Manufacturing Facility, wherever such documents may be located," which concern each of the incidents. (Id. at 30 - 38).

The above-referenced ten subpoenas are collectively referred to herein as "the Subpoenas." Lear filed petitions with the Board to revoke the Subpoenas, or alternatively to enforce them under a protective order (id. at 44 - 50, 52 - 58; Doc. 7 at 195 - 205), which the Board denied (Doc. 1-1 at 60 - 62, 64 - 66; Doc. 7 at 306 - 308). After informal attempts to secure Lear's compliance with the Subpoenas did not succeed, the Board filed the present applications seeking their enforcement.

II. Jurisdiction and Venue

The Board's applications are properly brought under 29 U.S.C. § 161(2),which provides:

In case of contumacy or refusal to obey a subpena issued to any person,[³] any district court of the United States . . . , 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, upon application by the Board shall have jurisdiction to issue to such person an order requiring such person to appear before the Board, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof.

See also NLRB v. Wilson, 335 F.2d 449, 451 (5th Cir. 1964)⁴ ("The district court has power to enforce [subpoenas issued by the Board] under 29 U.S.C.A. 161(2)...").

The Subpoenas were issued in connection with the Board's investigation of charges alleging unlawful activity occurring at Lear's facility in Selma, Dallas County, Alabama, which is part of this judicial district. See 28 U.S.C. § 81(c)(1).⁵ Thus, jurisdiction and venue in this Court are both proper.

III. General Legal Standards

"For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by sections 159 and 160 of this title[, t]he Board, or its duly authorized agents oragencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question." 29 U.S.C. § 161(1). "The provision can be read only as giving the [Board] a right to obtain that evidence, not a mere license to seek it." Univ. of Pa. v. EEOC, 493 U.S. 182, 192 (1990) (rejecting the contention that "that Title VII's subpoena enforcement provisions do not give the [Equal Employment Opportunity ]Commission an unqualified right to acquire []evidence" as inconsistent with "the plain language of the text of [42 U.S.C. ]§ 2000e-8(a), which states that the Commission 'shall . . . have access' to 'relevant' evidence (emphasis added).").⁶

The Supreme Court has recognized the broad investigatory power of administrative agencies:

Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidencebut can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.

United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S. Ct. 357, 364, 94 L. Ed. 401 (1950). See also Peters[ v. United States], 853 F.2d [692,] 696[ (9th Cir. 1988)] ("[t]he authority of an administrative agency to issue subpoenas for investigatory purposes is created solely by statute").

"It is well-settled that the role of a district court in a

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