NLRB v. Consolidated Vacuum Corp., 392

Decision Date24 May 1968
Docket NumberNo. 392,Docket 31930.,392
Citation395 F.2d 416
CourtU.S. Court of Appeals — Second Circuit

Irving Abramson, Ruth Weyand and Melvin Warshaw, Washington, D. C., for applicant-appellee International Union of Electrical, Radio and Machine Workers, AFL-CIO.

Kenneth C. McGuiness, Washington, D. C., Peter G. Nash, Rochester, N. Y. (Vedder, Price, Kaufman, Kammholz & McGuiness, Washington, D. C., of counsel), for respondent-appellant.

Before MOORE, WOODBURY* and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

The Consolidated Vacuum Corporation ("the Company") appeals from an order of the District Court for the Western District of New York, John O. Henderson, Judge, requiring the Company to comply with a subpoena duces tecum issued in a proceeding pending before the National Labor Relations Board. We find no error and affirm the order.

On October 11, 1966, the International Union of Electrical, Radio & Machine Workers, AFL-CIO ("the Union"), filed an unfair labor practice charge against the Company, alleging violations of sections 8(a) (1) and (5) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Board's General Counsel issued a complaint on March 9, 1967, alleging inter alia that the Company had interfered with, restrained and coerced its employees in violation of section 8(a) (1) of the Act by granting merit wage increases in order to induce them to refrain from becoming or remaining Union members. The increases were alleged to have occurred "since on or about dates * * * in the months of May and June, 1966. * * *"

The General Counsel wished to introduce all wage increases that had been granted over a period of fourteen months beginning on May 1, 1965; the Company, however, was concerned about the possible disruption if large numbers of employees and Company officials should be called to testify about the increases, and if there should be public disclosure of individual merit increases. The Company and counsel for the General Counsel therefore agreed to a stipulation of the facts relevant to the merit increases alleged in the complaint. The names of the employees were coded so that they would not become of public record.

The Union was not permitted to examine the documents upon which the stipulation was based, and accordingly refused to go along with it. Under section 11(1) of the Act, 29 U.S.C. § 161(1), the Union sought the issuance of a subpoena duces tecum to enable it to examine the evidence upon which the stipulation was based. That section provides, in part: "The Board, or any member thereof, shall upon application of any party * * * forthwith issue to such party subpenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application." The subpoena was addressed to Myles H. MacMillan, the Company's personnel director, and William Finney, Company vice president.

MacMillan and Finney filed a timely petition to revoke the subpoena under that part of section 11(1) which reads: "Within five days after the service of a subpena of any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required." The petition to revoke was granted in part and denied in part by the Trial Examiner.

The Board, at the Union's request, filed an application in the District Court for an order requiring obedience to the subpoena (to the extent it was not revoked by the Trial Examiner) after MacMillen and Finney had refused to comply with it. The Company was named as respondent. See section 11(2) of the Act, 29 U.S.C. § 161(2). The Court ordered the Company to appear before the Trial Examiner and produce the records in issue and give testimony. Such orders under 29 U.S.C. § 161(2) are appealable. See NLRB v. Wilson, 335 F. 2d 449 (5 Cir. 1964).

The Company's appeal from the order raises two questions: (1) may the Company, which failed to exhaust its administrative remedies, now object to the subpoena on substantive grounds?; (2) did the District Court abuse its discretion?

(1) The Board has provided, by regulation, that a petition to revoke a subpoena in circumstances such as those present in this case shall be filed with the Trial Examiner. 29 C.F.R. § 102.31. This delegation of power has been expressly upheld. See Lewis v. NLRB, 357 U.S. 10, 12-13, 78 S.Ct. 1029, 2 L.Ed.2d 1103 (1958); Herman Brothers Pet Supply, Inc. v. NLRB, 360 F.2d 176 (6 Cir. 1966); cf. NLRB v. Duval Jewelry Company of Miami, Inc., 357 U.S. 1, 78 S.Ct. 1024, 2 L.Ed.2d 1097 (1958). But one of the basic grounds for upholding the delegation was that the Board has reserved to itself the final decision on petitions to revoke.

The question is whether or not the Company is precluded from opposing enforcement of the subpoena because it...

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5 cases
  • McLane Co. v. Equal Emp't Opportunity Comm'n
    • United States
    • U.S. Supreme Court
    • April 3, 2017
    ...district court's decision whether to enforce an NLRB subpoena should be reviewed for abuse of discretion. See NLRB v. Consolidated Vacuum Corp., 395 F.2d 416, 419–420 (C.A.2 1968) ; NLRB v. Friedman, 352 F.2d 545, 547 (C.A.3 1965) ; NLRB v. Northern Trust Co., 148 F.2d 24, 29 (C.A.7 1945) ;......
  • Obrycka v. City of Chicago
    • United States
    • U.S. District Court — Northern District of Illinois
    • June 29, 2011
    ... ... CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). "The Federal Rules of ... ...
  • N.L.R.B. v. G.H.R. Energy Corp.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 7, 1982
    ...the district court's enforcement order unless we find that the court has abused its discretion. See, e.g., NLRB v. Consolidated Vacuum Corp., 395 F.2d 416, 419-20 (2d Cir.1968); NLRB v. Friedman, 352 F.2d 545, 547 (3rd Cir.1965); Shotkin v. Nelson, 146 F.2d 402, 404 (10th Cir.1944) ("Whethe......
  • Obrycka v. City of Chicago
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 17, 2012
    ... ... CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). "The district court ... ...
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