NLRB v. Interboro Contractors, Inc., 51

• Decision Date: 24 September 1970
• Docket Number: Docket 34556.,No. 51,51
• Citation: 432 F.2d 854
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERBORO CONTRACTORS, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

432 F.2d 854 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERBORO CONTRACTORS, INC., Respondent.

No. 51, Docket 34556.

United States Court of Appeals, Second Circuit.

Argued and Decided September 24, 1970.

Charles R. Both, Washington, D. C. (Arnold Ordman, Gen. Counsel; Dominick L. Manoli, Associate Gen. Counsel; Marcel Mallet-Prevost, Asst. Gen. Counsel; William F. Wachter and Avrum M. Goldberg, Attys., N.L.R.B., on the brief), for petitioner.

Joseph Nurnberg, New York City, for respondent.

Before LUMBARD, Chief Judge, and ANDERSON and FEINBERG, Circuit Judges.

LUMBARD, Chief Judge:

We grant, in open court, enforcement of the Supplemental Order of the National Labor Relations Board directing the respondent Interboro Contractors, Inc. to pay $8,183.00 and $8,292.00 respectively to John and William Landers who had been improperly discharged, as we held in N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495 (2d Cir. 1967). We file a written opinion in order to set forth our reasons for holding that parties in a proceeding before the Board and its examiner are not entitled to the full panoply of discovery procedures provided by the Federal Rules of Civil Procedure.

In the original proceeding (157 N.L. R.B. 1295), the Board found that the Company discharged employees John and William Landers for engaging in protected concerted activity, and that it thus violated section 8(a) (1) of the National Labor Relations Act. At the time of their discharge the Landers brothers were employed on a construction project on Tratman Avenue in the Bronx. On January 18, 1969, we entered an enforcement decree which directed the Company, inter alia, to make the Landers whole for any loss of pay they may have suffered as a result of the Company's unfair labor practices.

Thereafter, the Board instituted the present proceeding pursuant to section 102.52 et seq., of its Rules and Regulations, to determine the amount of back pay due the claimants. The Regional Director issued his Backpay Specification and Notice of Hearing on July 18, 1968. The specification alleged that John and William Landers were replaced by employees Thomas McSpedon and Leroy Carmichael respectively. It further alleged that the back-pay period ran from April 15, 1965, the date of the discharge, to January 21, 1966, the last date on which McSpedon and Carmichael were employed on the Tratman Avenue project, and that the Landers' net back pay equalled the gross earnings of their replacements during the back-pay period less the interim earnings of the Landers.

The Backpay Specification and Notice of Hearing also stated that a hearing would be held before a trial examiner on August 5, 1968, for the purpose of litigating the allegations set forth in the Backpay Specification. The hearing was later rescheduled for August 21, and was held then and on August 22. At the hearing Company counsel objected to the proceedings on the ground that he had not been allowed to take pre-hearing depositions of the Landers. He also moved for an adjournment on the ground that he did not have adequate opportunity to prepare, but his motion was denied.

On appeal to this court, the Company contends that the Board's back-pay award is not supported by substantial evidence and that it did not receive a fair hearing because it should have been allowed to depose the Landers prior to the hearing and because the denial of an adjournment by the trial examiner was improper and prejudicial. It asks that enforcement be denied or, in the alternative, that a further hearing be held. We grant enforcement and hold that the record amply supports the Board's back-pay award and that the denial of the Company's application to depose the Landers prior to hearing and the denial of the Company's motion for adjournment were proper.

About three weeks before the hearing, Company counsel requested and received five subpoenas,¹ but he never used any of them. About the same time, the Company filed with the Board's regional office an application to take depositions from the back-pay claimants upon eight items of information. The Regional Director denied this application on the ground that no good cause had been shown within the meaning of section 102.30 of the Board's rules.² The Company renewed its application on August 2, and shortly thereafter the Regional Director reaffirmed his denial and advised the Company that "Insofar as your application may be deemed a motion for discovery that also must be denied inasmuch as the Board's rules do not provide for such proceedings." Prior to the back-pay hearing the Company moved pursuant to section 102.30 for leave to take depositions from the Landers for the purpose of discovery. The trial examiner denied this motion on the ground that section 102.30 does not provide for the taking of discovery depositions but authorizes the taking of depositions of witnesses who, in the examiner's words, "for some reason or other cannot appear at the hearing." The back-pay claimants were then called to testify by the General Counsel and were cross-examined extensively by the Company.

At the conclusion of cross-examination, the Company counsel moved for an adjournment for an indefinite period in order "to give us an opportunity to put our case in." The principal ground for his application was that, having heard the testimony of the Board's witnesses for the first time and having seen its exhibits for the first time at the hearing, he was unprepared to meet the issues. Upon denial of the adjournment, the back-pay hearings closed without submission of the Company's case.

Subsequently, on December 19, 1968, the trial examiner issued his Supplemental Decision, in which he determined that the Company was liable for the amount of back pay in the specification, as modified. The Company thereafter filed exceptions to the trial examiner's Supplemental Decision, and on April 29, 1969, the Board issued its Supplemental Decision and Order affirming its examiner. Accordingly, the Board ordered respondent to pay the named employees the amount of back pay determined by the trial examiner.

The Company's first claim is that there is no substantial evidence in the record to support the Board's conclusions (1) that the back-pay period terminated on January 21, 1966, (2) that McSpedon and Carmichael were the Landers' replacement, (3) that John Landers made reasonable efforts to obtain reemployment while he was out of work, or (4) that William Landers made such reasonable efforts to obtain reemployment. None of these claims has merit.

The Company's second claim is that it did not receive a fair hearing because it was not allowed to take depositions of the Landers. The Company applied for leave to take their depositions prior to the hearing, for the stated purpose of aiding counsel in the preparation of his case for trial. Both parties agree that the application amounted to a request for pre-hearing discovery. The Board contends that its Rule 102.30 permitting depositions for "good cause shown" means that depositions may be taken for use as evidence in an action when there is reason to believe that the witness whose deposition is sought may be unavailable at the hearing, and that the Rule was never intended to provide for the taking of depositions solely for discovery purposes when the witnesses will be available for trial. We agree.

It is well settled that parties to judicial or quasi-judicial proceedings are not entitled to pre-trial discovery as a matter of constitutional right. Starr v. Commissioner of Internal Revenue, 226 F.2d 721, 722 (7th Cir.), cert. denied 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed. 859 (1955); Miner v. Atlass, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960). In fact, until Rule 26 of the Federal Rules of Civil Procedure (FRCP) became effective in 1938, pre-trial discovery was not available in the federal courts. Moreover, the National Labor Relations Act does not specifically authorize or require the Board to adopt discovery procedures. N.L.R.B. v. Globe Wireless, Ltd., 193 F.2d 748, 751 (9th Cir. 1951). Although section 6 of the Act does give the Board the necessary rule-making power to carry out the Act, the provision places the Board under no obligation to adopt particular pre-trial procedures. Indeed several cases arising under the Act have held that, although the Board may possess the necessary rule-making power, the circumstances under which discovery will be permitted is a matter committed to the Board's discretion. See Electromec Design & Development Co. v. N.L.R.B., 409 F.2d 631, 635 (9th Cir. 1969); N.L.R.B. v. Vapor Blast Mfg. Co., 287 F.2d 402, 407 (7th Cir.), cert. denied 368 U.S. 823, 82 S.Ct. 42, 7 L.Ed.2d 28 (1961); North American Rockwell Corp. v. N.L.R.B., 389 F.2d 866, 871-872 (10th Cir. 1968).

The predecessor of the present Board Rule 102.30 was adopted and became effective in 1935, three years before Rule 26 of the FRCP entitled litigants in federal courts to take depositions "for the purpose of discovery." That Board Rule was patterned after former Equity Rule 47, which Rule 26 of the FRCP superseded, and which permitted the taking of depositions "upon good and exceptional cause" for the purpose of obtaining and preserving evidence for trial, not for the purpose of discovery.³ The Board's Rule has not changed substantially; it did not then authorize, and has not since authorized the taking of depositions for discovery purposes. The Board has consistently upheld this interpretation and has construed the Rule as requiring more than a showing that the taking of depositions would aid counsel in the preparation of his case for trial. See Mastro Plastics Corp., 136 N.L.R.B. 1342, 1344, n. 7 (1962), enforced in relevant part, Master Plastics Corp. v. United States, 354 F.2d 170, cert. denied 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1965); Van Raalte, Inc., 69 N.L.R.B. 1326, 1327 (1946); Walsh-Lumpkin Wholesale Drug Co., 129 N.L.R.B. 294,...