NLRB v. Williams
| Decision Date | 21 May 1968 |
| Docket Number | No. 16436-16437.,16436-16437. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Applicant-Appellant, v. Kenneth R. WILLIAMS, Respondent-Appellee, and Teamsters General Local No. 200, Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor-Appellee, NATIONAL LABOR RELATIONS BOARD, Applicant-Appellant, v. Robert SHAW, Respondent-Appellee, and Teamsters General Local No. 200, Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marcel Mallet-Prevost, Asst. General Counsel, Solomon I. Hirsh, Gregory L. Hellrung, Attys., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Washington, D. C., for appellant.
Robert K. Drummond, David W. Croysdale, Richard M. Goldberg, John S. Williamson, Jr., Milwaukee, Wis., for appellee; Goldberg, Previant & Uelmen, Milwaukee, Wis., of counsel.
Before KNOCH, Senior Circuit Judge, and CASTLE and FAIRCHILD, Circuit Judges.
These appeals are from orders of the District Court denying the National Labor Relations Board's applications, made pursuant to Section 11(2) of the National Labor Relations Act, as amended,1 for enforcement of a subpoena duces tecum directed to Kenneth R. Williams, respondent-appellee in Appeal No. 16346, and a subpoena ad testificandum directed to Robert Shaw, respondent-appellee in Appeal No. 16347. Williams and Shaw are, respectively, the president and the vice-president of S & W Transfer, Inc.
The record discloses that the employees of S & W in an April 24, 1967, Board conducted representation election rejected the Union2 as their collective bargaining representative. Following the election S & W filed unfair labor practices charges against the Union alleging that picketing which preceded and followed the election violated Section 8 (b) (7) (B) of the Act. The Board issued a complaint and notice of hearing, and the Union filed an answer denying the charges. A hearing was scheduled for May 24, 1967. On May 22 S & W filed a request to withdraw its charges. The request was refused by the Board's Regional Director on the basis that approval of the request would not effectuate the policies of the Act. On May 23 upon application of the Board's General Counsel pursuant to Section 11(1) of the Act, the Board issued the subpoenas directing the respondents-appellees to appear and testify before the examiner at the scheduled hearing, and directing Williams to produce a copy of "the existing collective-bargaining agreement" between S & W and the Union.3 On May 24, the date of the hearing, the Union filed an amended answer withdrawing its previous denials of allegations and charges contained in the complaint. Thus, in effect, the Union admitted the Section 8(b) (7) (B) violation charged,4 and the sole issue remaining before the examiner was the fashioning of an appropriate remedy. On the same day counsel for S & W advised that neither Williams nor Shaw would appear to testify before the examiner or produce the requested document. The hearing was continued to allow General Counsel to make applications for court enforcement of the subpoenas.
After a hearing on the enforcement applications and the answers filed by the respondents denying that the evidence sought by the subpoenas was relevant or material to the pending unfair labor practice proceeding, the District Court entered orders denying the Board's applications for orders enforcing the subpoenas. The Board appealed.
At the hearing before the court it was brought out that the purpose of the subpoenas was to elicit evidence as to whether S & W and the Union had entered into a collective bargaining agreement on or about May 18, 1967; whether such agreement was the direct result of the improper picketing; and whether the picketing ceased with the signing of the contract. It was represented that General Counsel sought the production of a copy of the contract and the testimony of Williams and Shaw, the two major officers of S & W, in order to obtain and present evidence concerning the execution of the contract, the manner in which it was executed, what led up to it, and its contents. It was the position of the General Counsel, in connection with the unfair labor practice proceeding, that if the contract was executed by S & W as a result of improper coercive Union conduct — the improper picketing — abrogation of the contract would be an appropriate remedy for the unfair labor practice Section 8(b) (7) (B) violation. The District Court, however, was of the view that "the issue as to whether the contract was the coerced product of the improper picketing is not within the fair scope of the charge of a Section 8(b) (7) violation". Accordingly, it denied enforcement of the subpoenas.
We reverse. The Supreme Court in two cases, Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424, and Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614, set forth the standards governing judicial enforcement of administrative subpoenas. Duly issued subpoenas are to be enforced if the agency is seeking information "not plainly incompetent or irrelevant to any lawful purpose". Endicott Johnson Corp. v. Perkins, supra, 317 U.S. at 509, 63 S.Ct. at 343. And, the essential requirement for both the issuance and enforcement of a National Labor Relations Board subpoena is that the production of the evidence or the giving of the testimony called for by the subpoena must relate to a "matter under investigation or question". The evidence or testimony sought must touch upon the matter under investigation or in question. Section 11 (1) and 11(2) of the Act; N. L. R. B. v. Rohlen, 7 Cir., 385 F.2d 52, 55-56.
No contention is advanced that the subpoenas are unreasonably burdensome. The primary issue presented by these appeals is whether the evidence and testimony sought is relevant to the matter "under investigation or in question" before the Board.
Here the question concerning the remedy to be applied for the admitted Section 8(b) (7) (B) violation — the...
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