NLRB v. Wilson

Decision Date13 July 1964
Docket NumberNo. 20969.,20969.
Citation335 F.2d 449
PartiesNATIONAL LABOR RELATIONS BOARD, Appellant, v. L. T. WILSON, Manager Shell Oil Company Refinery, and J. W. Hyde, Manager Shell Oil Company Chemical Plant, Appellees. L. T. WILSON, Manager Shell Oil Company Refinery, and J. W. Hyde, Manager Shell Oil Company Chemical Plant, Appellants, v. NATIONAL LABOR RELATIONS BOARD, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Elliot Moore, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Robert A. Armstrong, Atty., N. L. R. B., Washington, D. C., for appellant.

Leroy Jeffers and W. D. Deakins, Jr., and Vinson, Elkins, Weems & Searls, Houston, Tex., of counsel, for appellees.

Chris Dixie, Houston, Tex., amicus curiae.

Dixie & Schulman, Houston, Tex., for movant.

Before HUTCHESON, PRETTYMAN,* and JONES, Circuit Judges.

HUTCHESON, Circuit Judge.

These are appeals from an order of the district court modifying and enforcing a certain subpoena duces tecum issued by the National Labor Relations Board against Shell Oil at the request of the Union and pursuant to an unfair labor practices action instituted by the Union. The district court has power to enforce such orders under 29 U.S.C.A. 161(2) and this court has reviewed such action by district courts apparently as final orders. Storkline Corp v. National Labor Relations Board, 298 F.2d 276, 277 (5th Cir., 1962); National Labor Relations Board v. Duval Jewelry Co., 257 F.2d 672 (5th Cir. 1958); National Labor Relations Board v. Anchor Rome Mills, Inc., 5 Cir., 197 F.2d 447.

Appellant-Shell asserts five grounds upon which the subpoena should be quashed. Appellant-Board defends against several of Shell's assertions and puts forth several reasons of its own why the subpoena should not have been modified to restrict its scope.

The alleged violation of the Act was the admittedly economically motivated decision to subcontract bargaining unit work before and during a strike. The subpoenas as modified ordered that Shell produce all contracts entered into with certain named individuals and dealing with certain specified jobs, over a certain specified period of time.


(1) Shell asserts that as a matter of law it is not an unfair labor practice to contract out work for economic reasons only and without anti-union motivation, and, therefore, the subject matter of the subpoena is clearly irrelevant to any lawful purpose the Board might have. The Board answers that the law is not completely settled on this point, and therefore, there was no error in finding relevancy. Shell argues that the law is settled in the Fifth Circuit that contracting out for economic reasons only is not an unfair labor practice. N. L. R. B. v. Houston Chronicle Pub. Co., 211 F.2d 851 (5th Cir., 1954); Town & Country Mfg. Corp. v. National Labor Relations Board, 316 F.2d 846 (5th Cir. 1963); and National Labor Relations Board v. Adams Dairy, Inc., 322 F.2d 553 (8th Cir., 1963). The only case contrary to this view is East Bay Union, etc. v. National Labor Relations Board, 116 U.S.App.D.C. 198, 322 F.2d 411 (1963), cert. granted 375 U.S. 974, 84 S.Ct. 491, 11 L.Ed.2d 420. We are in accord with the Board's assertion.

(2) Appellant Shell's next two points are that contracting out was covered by the collective bargaining agreement and custom and, therefore, contracting out disputes could not be unfair labor practices but could merely give rise to contract actions; and that contracting out after the strike could not be an unfair labor practice since the strike was an economic strike. They both fail because they require that the court determine disputed fact issues, the scope of the contract and custom, and the nature of the strike, which can properly be determined only on the determination of the dispute on its merits.

(3) Shell's last two points against the order are easily disposed of. One is that the subpoena, modified as it was to make it more specific, is still too broad and sweeping. Thirty-two firms and eighty-five types of work are individually named. Though broad language is used in connection with the naming of the jobs, e. g. "painting of all vessels, tanks, pipes, and other equipment", we think it is sufficiently precise and clear. The other is that the Trial Examiner and the Board each failed to make necessary findings under Board rules to support the enforcement order of the trial court. Rules and Regulations, Series 8, Sec. 102.31(b). An examination of the order indicates that by incorporation a simple and sufficient statement of grounds for the ruling was made.


(1) The Board asserts an error in the court's refusal to extend the subpoena to those areas in which the job was...

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3 cases
  • Nat'l Labor Relations Bd. v. Lear Corp.
    • United States
    • U.S. District Court — Southern District of Alabama
    • May 10, 2016
    ...question; and any failure to obey such order of the court may be punished by said court as a contempt thereof.See also NLRB v. Wilson, 335 F.2d 449, 451 (5th Cir. 1964)4 ("The district court has power to enforce [subpoenas issued by the Board] under 29 U.S.C.A. 161(2)..."). The Subpoenas we......
  • NLRB v. Consolidated Vacuum Corp., 392
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 24, 1968
    ...Examiner and produce the records in issue and give testimony. Such orders under 29 U.S.C. § 161(2) are appealable. See NLRB v. Wilson, 335 F. 2d 449 (5 Cir. 1964). The Company's appeal from the order raises two questions: (1) may the Company, which failed to exhaust its administrative remed......
  • State of South Dakota v. National Bank of SD, Sioux Falls
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 10, 1964

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