NLRB v. British Auto Parts, Inc.

• Decision Date: 31 March 1967
• Docket Number: Civ. A. No. 67-75.
• Citation: 266 F. Supp. 368
• Court: U.S. District Court — Central District of California
• Parties: NATIONAL LABOR RELATIONS BOARD, Plaintiffs, v. BRITISH AUTO PARTS, INC., Defendant.

266 F. Supp. 368

NATIONAL LABOR RELATIONS BOARD, Plaintiffs, v. BRITISH AUTO PARTS, INC., Defendant.

Civ. A. No. 67-75.

United States District Court C. D. California.

March 31, 1967.

COPYRIGHT MATERIAL OMITTED

Daniel J. Harrington, Regional Atty., Milo V. Price, Atty., National Labor Relations Board, Region 21, Los Angeles, Cal., for plaintiff.

Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., David A. Maddux, Los Angeles, Cal., appearing, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

IRVING HILL, District Judge.

This cause came on to be heard upon a complaint for an order compelling production of records filed by the plaintiff National Labor Relations Board on January 16, 1967, and upon the issuance of a rule to show cause on that date setting the matter for hearing on February 27. On February 10, 1967, defendant filed an answer and on February 20, defendant filed motions to dismiss the said complaint and for summary judgment. The Board filed no response to defendant's motions; the parties stipulated that the points and authorities filed by the Board in support of the complaint would be deemed its opposition to the said motions and the points and authorities filed by defendant in support of its motions would be deemed its opposition to the complaint.

The matter having been heard on February 27, 1967, the Court, being duly advised in the premises, makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff is an administrative agency created by the National Labor Relations Act, referred to hereafter as "the Act" (29 U.S.C. § 151 et seq.), and is empowered and directed to administer the provisions of the Act, including the investigation of questions of employee representation under Section 9 (29 U.S.C. § 159).

2. Defendant is an employer engaged in the importation and wholesale distribution of automobile parts for interstate commerce within the meaning of Sections 2(6) and (7) of the Act (29 U.S. C. §§ 152(6), (7)).

3. Defendant's facility where the employees involved in this proceeding are employed is located at Gardena, California, within this judicial district.

4. On March 17, 1966, a labor organization (General Warehousemen, Local Union No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America) filed a petition with the Board's Twenty-first Region at Los Angeles, California, asserting its claim to represent defendant's employees, and seeking a representation election to establish its majority support. The petition was docketed as Board Case No. 21-RC-9986.

5. On April 12, 1966, the Regional Director approved a Stipulation for Certification upon Consent Election entered into by the Company and the Union. The stipulation provides, in relevant part, that the Board shall conduct an election in the stipulated unit, and that "said election shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the applicable procedures and policies of the Board * * *."

6. One of the Board's election rules in effect at the time the parties entered into the stipulation for a consent election was the rule announced by the Board on February 4, 1966, in its decision in Excelsior Underwear Inc., 156 N.L.R.B. No. 111. Defendant does not challenge the propriety of the Board's method of adoption of the Excelsior rule.

7. Under the Board's Excelsior rule an employer is required to file with the Board's Regional Director, in the region where the representation proceeding is pending, a list of the names and addresses of all employees eligible to vote in the representation election within 7 days after the Regional Director's approval of a consent election agreement or after the close of the determinative payroll period for eligibility purposes, whichever is later. The Regional Director is then to make the list available to all parties to the representation proceeding in order to promote the communication of election issues to the employees and to aid in challenging the ballots of employees believed to be ineligible to vote.

8. The Board's Excelsior decision further provides that an employer's failure to file the required list of employee names and addresses "shall be grounds for setting aside the election whenever proper objections are filed."

9. On April 19, 1966, defendant filed with the Regional Director an election eligibility list containing the names of its employees, but omitting their addresses, contrary to the Excelsior rule.

10. On May 2, 1966, an election was conducted in which 3 employees cast valid ballots for the Union and 4 employees cast valid ballots against. The Board, however, sustained the Union's objection to conduct affecting the results of the election based on defendant's refusal to furnish the Excelsior list, set the election aside, and directed a second election (160 N.L.R.B. No. 40).

11. On August 4, 1966, the Regional Director notified defendant that the second election was to be conducted on September 12, 1966, and requested that an election eligibility list of employee names and addresses be filed not later than August 11, 1966, as required by the Board's order and the Excelsior rule.

12. Defendant again failed to furnish an election eligibility list containing the addresses of its employees as required by the Excelsior rule.

13. Thereafter, the Union notified the Regional Director that it did not want to proceed to a second election until defendant furnished the required eligibility list, in compliance with the Board's Excelsior rule. Accordingly, the Regional Office notified the parties that the second election would be postponed.

14. On September 14, 1966, the Regional Director caused a subpena duces tecum to be issued pursuant to Section 11(1) of the Act (29 U.S.C. § 161 (1)), directing defendant to produce and make available to the Board's Regional Office defendant's personnel and payroll records, or an eligibility list in lieu thereof, containing the names and addresses of all employees eligible to vote in the election.

15. The subpena was served upon the defendant by registered mail on September 15, 1966.

16. On September 20, 1966, defendant filed a petition to revoke the subpena, which was denied by the Board by a formal telegraphic order dated September 22, 1966.

17. On October 3, 1966, the Regional Director caused a second subpena duces tecum to be issued pursuant to Section 11(1) of the Act (29 U.S.C. § 161(1)). This subpena was identical to the first subpena described in paragraph 14, supra, save only for the date of return.

18. The second subpena was served upon defendant by registered mail on October 4, 1966.

19. Defendant did not file a petition to revoke the second subpena.

20. Defendant appeared on October 12, 1966, the return date for the second subpena, but failed and refused to produce the materials as therein called for and as required by its terms, and has at all times since failed and refused and continues to fail and refuse to produce the records and documents called for in said subpena.

21. Upon defendant's refusal to comply with the subpena, the Board instituted the instant proceeding seeking, inter alia, an order requiring defendant to produce the material called for by the subpena.

CONCLUSIONS OF LAW

1. The National Labor Relations Board is entitled by virtue of Section 11(2) of the National Labor Relations Act (29 U.S.C. § 161(2)) to enforcement of the subpena duces tecum directed to defendant. The subpena was issued by the Board in a properly instituted representation proceeding (Board Case No. 21-RC-9986) and is a valid aid to the Board in its statutorily authorized function of determining the question of representation presented.

2. The material sought to be subpenaed, i. e., defendant's personnel and payroll records, or an eligibility list in lieu thereof containing the names and addresses of employees eligible to vote in the elections, are "evidence" within the meaning of Section 11 (1) of the National Labor Relations Act (29 U.S.C. § 161 (1)). The term "evidence" is not limited to formal proof of disputed facts presented in a trial-type hearing. Rather, Section 11(1) permits the Board to subpena records containing information necessary or helpful to carrying out its statutory duties at the investigative, as well as at the hearing stage of its proceedings. Cudahy Packing Co. v. NLRB, 117 F.2d 692, 693 (10th Cir. 1941); NLRB v. Northern Trust Co., 56 F. Supp. 335 (N.D. Ill., 1944), aff'd, 148 F. 2d 24 (7th Cir.), cert. denied, 326 U.S. 731, 66 S.Ct. 38, 90 L.Ed. 435 (1945). The foregoing cases make clear that the Board may subpena as "evidence" an election eligibility list containing employees' names. The Board's Excelsior rule, requiring that employees' addresses as well as names be included in the eligibility list, does not alter the nature of the list for subpoena purposes. NLRB v. Wolverine Industries, 64 L.R.R.M. 2187, 2188 (E.D.Mich., 1966). Cf. NLRB v. Groendyke Transport, Inc., 372 F.2d 137 (10th Cir. 1967), where the Court of Appeals for the Tenth Circuit held that the Board may conduct a representation election by mail ballot. Implicit in that decision is the holding that the Board may require an employer to furnish the addresses of its employees for the purpose of conducting a representation election.

3. It is no defense to enforcement of the present subpena that the Board intends to make information revealed by the subpena available to the union involved in the representation proceeding. NLRB v. Friedman, 352 F.2d 545, 547 (3d Cir. 1965). "The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly are matters which Congress entrusted to the Board alone." NLRB v. Waterman S. S. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704, 715 (1940). See also NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322, 327 (1946); ...