NLRB v. Miami Coca-Cola Bottling Company
| Decision Date | 26 November 1968 |
| Docket Number | No. 20288.,20288. |
| Citation | 403 F.2d 994 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIAMI COCA-COLA BOTTLING COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Paul J. Spielberg, Bernard M. Dworski, Attys., N.L.R.B., Washington, D. C., for petitioner.
O. R. T. Bowden, David A. Bartholf, Jacksonville, Fla., for respondent.
Before TUTTLE and WISDOM, Circuit Judges, and FISHER, District Judge.
This matter is before us for the third time. In September 1962, the National Labor Relations Board, after an unfair labor practice proceeding, issued a decision and order directing Miami Coca-Bottling Company to reinstate with back pay certain employees discriminatorily discharged in violation of §§ 8(a) (3) and (1) of the National Labor Relations Act. In November 1963, this Court entered a decree enforcing the Board's decision and order. 324 F.2d 501. The Trial Examiner conducted hearings in June and in August 1964 to determine the amount due each discriminatee. Thereafter, the Board, in its Supplemental Decision and Order issued April 14, 1965, affirmed the Trial Examiner's decision requiring the respondent to pay specified amounts of backpay to the discriminatees. 151 NLRB 1701. In August 1966, this Court upheld the Board's position except with regard to one of the discharged employees, Robert W. Shepard. 360 F.2d 569. As to Shepard, the Court overruled various objections to his being awarded backpay, but sustained the respondent's contention that the Trial Examiner erred in prohibiting the employer's cross-examining Shepard about his sources of income during the backpay period. We remanded the relevant portion of the order, holding that the examiner "should have permitted the cross-examination of Shepard in order to obtain a `full and true disclosure of the facts'". 360 F.2d at 577.
On remand, a supplemental hearing was held October 3, 1966, devoted exclusively to cross-examination of Shepard by Mr. David A. Barthoff, one of the attorneys for the respondent. At the end of the hearing, Mr. Barthoff reserved the right to file a brief. The Trial Examiner set October 24 as the due date. On October 12 the Examiner received the respondent's application for leave to take depositions of Robert Shepard, his wife, Mrs. Irene Shepard, John Mackie (owner of the Klondike Bar, where Mrs. Shepard had been employed), and Mickey Killen (Shepard's employer during the first year of the backpay period). On October 18 the respondent filed a Motion for Extension of time for filing his brief. Several days later, Mr. Barthoff requested that he be allowed to take the depositions or, in the alternative, that the hearing be reopened to permit the respondent to examine the four witnesses on the open record. The Trial Examiner denied these applications. He issued his Supplemental Decision on Remand on November 1, 1966, reaffirming his original award to Shepard since, despite the "considerable latitude" given the respondent in cross-examining Shepard, no evidence was adduced to alter the original determination. March 27, 1967, the Board adopted the findings and recommendations of the Trial Examiner and now asks us to enforce its order.
The respondent opposes enforcement of the Board's order on the ground that it did not receive a "full and fair" hearing upon the remand.
Before the second hearing the Company filed an application to take the depositions of Shepard and others. The Company sought to question Shepard as to the whereabouts of two interim employers, Mickey Killen and Jimmy Dico, allegedly because it had not been able to locate these men before the original backpay hearing. The Regional Director denied this request for two reasons: at the first hearing Shepard had been examined about his earnings while employed by Killen and Dico, so that consideration of these sources of information was outside the scope of the remand; Shepard would be presented as a witness at the hearing.
The respondent then filed Interrogatories and a Second Application for Leave to Take Depositions. This application stated that the respondent "desires to take the deposition * * * regarding not only the matters set forth in the earlier application * * * but also to probe Shepard's other sources of income during the backpay period, in order to properly prepare for the hearing". The interrogatories asked that Shepard state "all sources of income, of whatever nature", including "fringe benefits of any monetary value" during the backpay period. The Director denied both requests, stating that "the Board's procedures make no provision for pre-trial discovery (Walsh-Lumpkin Wholesale Truck Company, 129 NLRB 294, 296) and that the requirement of § 10(b) of the Act, that unfair labor practice proceedings before the Board `shall so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States' relates only `to the introduction of evidence before the Board and not to the pre-trial privileges accorded parties to judicial proceedings' Del E. Webb Construction Company, 95 NLRB 377, footnote 2". The Director concluded therefore that the respondent had shown "insufficient cause why protection of its rights requires a pre-hearing examination of Robert W. Shepard in this situation".
If he meant, as he seems to say, that there is no pre-trial discovery in labor proceedings, the Director erred. The Board's regulations expressly provide for pre-trial depositions, "if in his discretion good cause has been shown". 29 C.F.R. § 102.30(a). In a similar case, N.L.R.B. v. Safeway Steel Scaffolds Company of Georgia, 5 Cir. 1967, 383 F.2d 273, this Court pointed out that § 102.30(a) provides for the taking of pre-trial depositions and that § 10(b) of the Act "would appear to give a trial examiner authority to permit the taking of depositions in any case where such a procedure would be practical". We concluded that "the examiner was wrong in holding that there is absolutely no provision for pretrial discovery". 383 F.2d at 277. If discovery is practicable in the circumstances of the case and if it is not used to harass or coerce employees, "the Board, acting in a quasijudicial capacity as it does, should freely permit discovery procedure in order that the rights of all parties may be properly protected". N. L. R. B. v. Southern Materials Company, Inc., 4 Cir. 1965, 345 F.2d 240.
In his brief filed in this Court, General Counsel apparently overlooked the Director's error. The brief rephrases the Director's reasons as based "on the grounds that the Board's procedures make no provision for pretrial discovery as a matter of right, and respondent had shown `insufficient cause' to believe such discovery was essential to the `protection of its rights'". (Emphasis added.)
As in Safeway Steel, however, the error was not fatal. The Director reached the right result in spite of using the wrong reason. At the original back-pay hearing the Company was permitted to question Shepard freely about his employment by Killen and Dico. The record...
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