NLRB v. North American Van Lines, Inc.

• Decision Date: 18 June 1985
• Docket Number: Civ. No. F 85-166.
• Citation: 611 F. Supp. 760
• Parties: NATIONAL LABOR RELATIONS BOARD, Applicant, v. NORTH AMERICAN VAN LINES, INC.; North American Van Lines Commercial Transport Advisory Council, Party of Interest, Respondent.
• Court: U.S. District Court — Northern District of Indiana

611 F. Supp. 760

NATIONAL LABOR RELATIONS BOARD, Applicant, v. NORTH AMERICAN VAN LINES, INC.; North American Van Lines Commercial Transport Advisory Council, Party of Interest, Respondent.

Civ. No. F 85-166.

United States District Court, N.D. Indiana, Fort Wayne Division.

June 18, 1985.

COPYRIGHT MATERIAL OMITTED

Ralph R. Tremain, Acting Regional Atty., N.L.R.B., Indianapolis, Ind., for applicant.

Duane C. Aldrich and Richard R. Carlson, Kilpatrick & Cody, Atlanta, Ga., Thomas A. Coz, North American Van Lines, Inc., Fort Wayne, Ind., for respondents.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on the National Labor Relations Board's ("NLRB") application for an order requiring the respondent ("North American") to comply with a subpoena duces tecum issued by the NLRB pursuant to § 11(1) of the Labor Management Relations Act, 29 U.S.C. § 161(1). For the following reasons, the application will be granted, and the documents ordered produced.

This application arises out of an administrative proceeding between the NLRB and North American. This underlying proceeding involves a complaint that North American engaged in an unfair labor practice by dominating and interfering with the formation of the North American Van Lines Commercial Transport Advisory Council, and by rendering unlawful assistance and support to that Council. The NLRB contends that these actions violated §§ 8(a)(1) and (2) of the National Labor Relations Act, 29 U.S.C. § 151, et seq.

The administrative hearing on the complaint began on January 15, 1985 (Joint Stipulation, ¶ 8). Most of the evidence in the NLRB's case-in-chief was directed at showing that the approximately 2,400 owner-operators in North American's Commercial Transport Division were employees under the National Labor Relations Act because North American exercised employer-type control over the owner-operators through its counselors and dispatchers. (Id., ¶ 14). Counsel for the General Counsel of the NLRB rested his case-in-chief on March 19, 1985, and North American began its defense that same day. (Id., ¶ 16).

On March 22, 1985, Counsel for the General Counsel served the disputed subpoena on North American, requesting five different sets of materials, including, in item 4, copies of "all written evaluations of counselors and dispatchers prepared during the period January 1, 1984 to date." North American filed a Petition to Revoke the Subpoena, which was ultimately denied by the Administrative Law Judge. North American produced three of the five sets of materials, reported that no documents satisfied a fourth, but refused to produce the written evaluations (Id., ¶¶ 19, 23). Counsel for the General Counsel rested his case in rebuttal on March 29, 1985, subject to his right to present evidence concerning the written evaluations should the subpoena be enforced. (Id., ¶ 22). In essence, the procedural posture of the administrative hearing is that the proceeding is over but for any further rebuttal that Counsel for the General Counsel may wish to put on after receiving the subpoenaed evaluations.

North American asserts two reasons for denying the application. The first rationale is relevance. North American argues that an administrative subpoena must seek documents or information which is "relevant;" it urges denial of the application because the documents sought cannot (in North American's eyes) produce evidence which would be proper for the NLRB's rebuttal purposes, and therefore is "irrelevant." The second rationale offered involves claims of privacy and confidentiality. North American asserts that production of the written evaluations will violate the privacy interests of employees, and jeopardize the flow of confidential information within the corporation. The court will consider each of these arguments in turn.

The power of the NLRB to issue subpoenas is set forth in § 11(1) of the Labor Management Relations Act, 29 U.S.C. § 161(1):

The Board, or its duly authorized agents or agencies, 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. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceedings or investigation requested in such application.

If a party refuses to obey a subpoena, the Board may apply for enforcement of the subpoena to the district court of the jurisdiction where the inquiry is being held or where the refusal occurred. Section 11(2), 29 U.S.C. § 161(2).

A district court's review of an NLRB subpoena is "extremely limited," "extremely narrow," and of "a summary nature." NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir.1982); NLRB v. Frederick Cowan and Co., Inc., 522 F.2d 26, 28 (2d Cir.1975). See also EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 310 (7th Cir.1981); EEOC v. Suburban Transit System, Inc., 538 F.Supp. 530, 532 (N.D.Ill. 1982). Generally, a court should order enforcement of an administrative agency's subpoena if three elements are present: (1) the investigation for which the subpoena is issued is "within the agency's authority," Bay Shipbuilding, 668 F.2d at 310; NLRB v. International Medication Systems, Ltd., 640 F.2d 1110, 1114 (9th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1712, 72 L.Ed.2d 134 (1982), or is "within the jurisdiction of the Board," NLRB v. Martins Ferry Hospital Ass'n, 649 F.2d 445, 448 (6th Cir.), cert denied, 454 U.S. 1083, 102 S.Ct. 638, 70 L.Ed.2d 617 (1981); NLRB v. Dutch Boy, Inc., Glow Lite Div., 606 F.2d 929, 932 (10th Cir.1979); (2) the subpoena is not "too indefinite," Bay Shipbuilding, 668 F.2d at 310, and the matter subpoenaed is described with "sufficient particularity," G.H.R. Energy Corp., 707 F.2d at 113; and (3) the information sought is "reasonably relevant." Bay Shipbuilding, 668 F.2d at 310; International Medication, 640 F.2d at 1114.¹

North American does not seriously contest the first two elements, and the court is convinced that the investigation for which the subpoena has issued is within the jurisdiction of the NLRB, and the subpoena is definite and particular. The focus of the argument here is the requirement that the information sought be "reasonably relevant"; North American contends that the written evaluations cannot provide any evidence which would properly rebut its defense, and thus the evidence would be "irrelevant" for proper rebuttal purposes.

The premise behind North American's relevancy argument is that the "reasonably relevant" element above can be translated as "relevant in an evidentiary sense." North American seeks to make an objection as to the use of the evidence in the administrative proceeding; it argues that the evidence will not serve to rebut the testimony during its case-in-chief, so that the evidence cannot properly be admitted at this point in the proceeding. In short, North American seeks to block enforcement of the subpoena because the documents subpoenaed cannot lead to "relevant," admissible evidence.

The court concludes that element (3) above does not use "relevant" in an evidentiary sense for several reasons. First, if the courts setting out the element intended to speak of "relevance" in the context of evidence, it makes no sense to say that the information sought must be "reasonably" relevant. Evidence is relevant or irrelevant, and relevant evidence is not viewed as having degrees of "reasonableness." Second, many courts which have considered the enforcement of summons have not used the "reasonably relevant" language, but have instead required that the evidence sought "relate to or touch the matter under investigation," G.H.R. Energy Corp., 707 F.2d at 113; Dutch Boy, Inc., 606 F.2d at 932; NLRB v. Williams, 396 F.2d 247, 249 (7th Cir.1968), or that the agency seeks information "not plainly incompetent or irrelevant to any lawful purpose." Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 343, 87 L.Ed. 424 (1943) (emphasis added); NLRB v. Q-T Shoe Mfg. Co., 409 F.2d 1247, 1253 (3d Cir.1969). This language suggests that courts view the relevancy requirement in terms of the investigation (i.e., the information sought is relevant to the investigation) as opposed to viewing it in terms of evidentiary relevance. This conclusion is reinforced by the Seventh Circuit's opinion in NLRB v. Rohlen, 385 F.2d 52 (7th Cir. 1967):

... if the material subpoenaed touches a matter under investigation, it is within the scope of section 11(2) even though the material may not be considered "evidence" as the term is employed in the courtroom.

Id. at 57. See NLRB v. Beech Nut Life Savers, Inc., 406 F.2d 253, 259 (2d Cir. 1968), cert. denied, 394 U.S. 1012, 89 S.Ct. 1624, 23 L.Ed.2d 38 (1969) (term "evidence" as used in 29 U.S.C. § 161 "has not been limited to formal proof of disputed facts presented in a trial-type hearing"). See also NLRB v. Wyman-Gordon Co., 394 U.S. 759, 768, 89 S.Ct. 1426, 1431, 22 L.Ed.2d 709 (1969).

Finally, one court has addressed the issue of whether a subpoenaed party may block enforcement of a subpoena by contesting the evidentiary question of whether the evidence subpoenaed will be relevant in the administrative proceeding. In NLRB v. Goodyear Tire & Rubber Co., 36 F.Supp. 413 (N.D.Ohio 1940), the court stated:

Clearly the Congress never intended to permit the controversy over reception of evidence to be removed or transferred to the District Court as an original suit merely upon the application of the Board for an order requiring compliance with its subpoena.

. . . . .

I do not think that jurisdiction to determine the relevancy of evidence sought by the Board is implicit in a grant of jurisdiction to issue an order requiring obedience to the

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