NLRB v. Schill Steel Products, Inc.

• Decision Date: 28 March 1969
• Docket Number: No. 21110.,21110.
• Citation: 408 F.2d 803
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHILL STEEL PRODUCTS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.2d 803 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHILL STEEL PRODUCTS, INC., Respondent.

No. 21110.

United States Court of Appeals Fifth Circuit.

February 19, 1969.

Rehearing Denied March 28, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Lawrence Gold, Atty., N.L. R.B., Washington, D. C., for petitioner.

V. Scott Kneese, Houston, Tex., for respondent.

Before WISDOM and GEWIN, Circuit Judges, and HANNAY, District Judge.

PETITION FOR ADJUDICATION IN CIVIL CONTEMPT AND FOR OTHER CIVIL RELIEF

WISDOM, Circuit Judge:

The Labor Board has petitioned this Court to adjudge Schill Steel Products, Inc. ("the Company") in civil contempt for its failure to comply with our decree dated February 2, 1965. The decree enforced the Board's orders of February 8, 1963, and August 20, 1963, that the Company cease and desist from certain named violations of Sections 8(a) (1), 8(a) (3), and 8(a) (5) of the National Labor Relations Act. The Company, upon order to show cause, denied various factual allegations made by the Board and added several affirmative defenses. It acquiesced in the Board's motion that a special master be appointed to hear the contempt proceedings, but moved for a specific provision in our order of reference to the master that would allow discovery of "all statements taken by the Board in the course of its investigations of the matters alleged in its Petition herein from witnesses whose testimony the Board intends to or may adduce at such hearing".

This motion, if granted, would, at the least, accelerate the discovery mechanism established in the Board's own rules: under 29 C.F.R. § 102.118, no agent of the Board may divulge matter in its records, even under subpoena, without the consent of the Board, its chairman, or its general counsel. This provision, however, requires that if a statement is made by a witness who later testifies, the statement shall be turned over to the opposing party after the witness has testified. The Company asks us to require the master to order statements of this sort to be discovered before the hearing.

The Board, in opposing the motion, cites no cases involving the right to discover statements within its possession. It relies instead upon two lines of precedent. The first holds, generally, that in suits to enforce national wage-and-hour requirements the Secretary of Labor need not reveal to the defendant employer the names of employees who have made complaining statements to the Secretary, or the statements themselves. See, e. g., Wirtz v. Robinson and Stephens, Inc., 5 Cir. 1966, 368 F.2d 114, Wirtz v. McDade, 5 Cir. 1964, 330 F.2d 610, Wirtz v. Continental Finance and Loan Co. of West End, 5 Cir. 1964, 326 F.2d 561, and Mitchell v. Roma, 3 Cir. 1959, 265 F.2d 633. Cf. Wirtz v. Hooper-Holmes Bureau, Inc., 5 Cir. 1964, 327 F.2d 939.

Although we recognize the principle underlying these decisions, we think that it does not dispose of the responding company's motion for discovery in the present case. The compelling factors in the wage-and-hour cases were, first, the danger that statements or names of informers in the Secretary's possession would be used for reprisals by their employers and, second, the weak showing of need by the would-be-discoverer. The position of the Secretary of Labor in enforcing wage-and-hour requirements may, concededly, be analogized to that of the Labor Board in enforcing the ban against employer coercion and discrimination. In the case before us, however, in contrast to the cases cited by the Board, the Company has limited its quest to the statements in the possession of the Board which were made by witnesses whom the Board expects to examine at the contempt hearing; the Company does not seek statements of all informers who have complained to the Board about its labor practices. Informers who actually testify, of course, surface automatically. Moreover, the Board's own house rule, 29 C.F.R. § 102.118 (1968), contemplates the delivery after the witness has testified, of all his pre-trial statements held by the Board. This regulation, we think, further negates the contention that discovery would improperly expose informers, since it requires that statements of witnesses be turned over anyway. We are unable to see how the danger of coercion or reprisal becomes greater if we require that the statements to the Board of witnesses who testify be turned over at the discovery stage rather than during the course of the hearing.

Similarly, in terms of the discoverer's need to know, the limited motion to inspect the statements here can be distinguished from the requests to discover the names and statements of informers in general that were denied in the wage-and-hour cases. Unlike the statements of non-testifying complainants, previous statements by actual witnesses, or those whose testimony is introduced at the hearing, may be used to impeach their testimony at the hearing, and is to that extent more valuable to the Company.

The cases of the second line cited by the Board in opposition to the motion to discover involve situations in which an employer has interrogated his employees about statements made by them to the Board in connection with unfair labor proceedings. Such questioning itself violates Section 8(a) (1) of the Act. Retail Clerks' International Association v. NLRB, 1967, 125 U.S.App. D.C. 389, 373 F.2d 655, Surprenant Mfg. v. NLRB, 6 Cir. 1965, 341 F.2d 756, NLRB v. Winn-Dixie Stores, Inc., 6 Cir. 1965, 341 F.2d 750, cert. denied, 1965, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74. Again, however, the interrogation in those cases was not limited to informers who, by testifying later, would expose themselves anyway, nor was it limited to statements that would, under the Board's regulation, necessarily come into the possession of the employer. Moreover, the inherently coercive interrogation of employee by employer,¹ does not occur in the present situation, where the discovery request is directed to a government agency.

We conclude, therefore, that the principles and precedents cited by the Board do not prohibit the granting of the Company's motion for discovery here. We have accordingly incorporated in our order of reference to the special master provision, in certain circumstances, for pre-hearing discovery of those statements in the possession of the Board made by witnesses it intends to examine at the contempt hearing. At the same time we emphasize the circumscribed nature of our action. First, before these statements may be discovered, the Company will have to satisfy the master as to the usual requirements under Fed.R. Civ. Pp. 26-34. In other words, we do not hereby grant the motion to discover itself, but merely hold that it shall not be denied by the master on the grounds thus far raised by the Board. To assure the protection of both parties, we have ordered that the Federal Rules of Civil Procedure shall govern discovery motions in this proceeding.

Second, this order allows only the discovery of statements made by those witnesses from whom the Board intends to adduce testimony at the hearing. It does not, therefore, make available any information that would not later be revealed under § 102.118 of the Board's rules.

It is accordingly ordered that Walter R. Johnson, Hearing Examiner, United States Civil Service Commission be, and he hereby is, appointed Special Master to take testimony and receive evidence with respect to the issues raised by the pleadings in this case; that the Clerk shall forthwith furnish the Master with a copy of this order, upon receipt of which the Master shall take an oath, faithfully to perform the duties imposed by this order, and file a copy of such oath with the Clerk of this Court; and it is

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