Perdue Farms, Inc., Cookin' Good Div. v. N.L.R.B.

Decision Date29 May 1998
Docket NumberNo. 97-1335,97-1335
Citation144 F.3d 830
Parties158 L.R.R.M. (BNA) 2403, 330 U.S.App.D.C. 187, 135 Lab.Cas. P 10,170 PERDUE FARMS, INC., COOKIN' GOOD DIVISION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
CourtU.S. Court of Appeals — District of Columbia Circuit

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

D. Christopher Lauderdale argued the cause for petitioner/cross-respondent. With him on the briefs was Erin E. Swann.

David A. Fleischer, Senior Attorney, National Labor Relations Board, argued the cause for respondent/cross-petitioner. With him on the brief was Linda Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel. Margaret A. Gaines, Supervisory Attorney, and Steven B. Goldstein, Attorney, entered appearances.

Before: SILBERMAN, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion dissenting in part filed by Circuit Judge RANDOLPH.

TATEL, Circuit Judge:

After a union lost a representation election at a chicken processing plant, the National Labor Relations Board found that the company had committed unfair labor practices by interrogating employees about their union sympathies, as well as by increasing wages and implementing a new attendance policy in order to influence the election. The Board also approved the administrative law judge's issuance of a preclusion order as a sanction for the employer's violation of a subpoena. Because substantial evidence in the record supports the Board's findings, and because the ALJ's preclusion order was not an abuse of discretion, we deny the company's petition for review and, with one exception, grant the Board's cross-application for enforcement.

I

Two months after petitioner Perdue Farms, Inc. acquired a chicken processing plant in Dothan, Alabama, in January 1995, the Laborers' International Union of North America, AFL-CIO, Local 784 began an organizational campaign. In April, the Union filed a petition for a representation election. The election occurred on June 15. The Union lost by a substantial majority.

Objecting to the conduct of the election, the Union charged Perdue with violating sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) (1994). Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." Id. § 158(a)(1). Section 8(a)(3) prohibits "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." Id. § 158(a)(3).

Following a seven-day hearing, the administrative law judge found that the employer had violated sections 8(a)(1) and (3) of the Act. Adopting the ALJ's findings, the Board agreed that Perdue violated section 8(a)(1) by interrogating employees about their union activities and sympathies, by confiscating union materials from employees entering the plant, by threatening to close the plant if the Union won the election, by promising increased benefits, by changing the plant attendance policy two days before the election, and by timing a wage increase and elimination of an attendance bonus program for the day before the election, all in order to influence the election's outcome. Cooking Good Div. of Perdue Farms, Inc., 323 N.L.R.B. No. 50, at 3-5, 8-10, 1997 WL 156724 (Mar. 31, 1997). The Board also found that the timing of the wage increase and the changing of the attendance policy violated section 8(a)(3), id. at 9-10, a somewhat surprising conclusion in view of the fact that section 8(a)(3) has no applicability where, as here, the record contains no evidence of discrimination. Conceding this point, agency counsel advised us at oral argument that the Board no longer sought enforcement of the section 8(a)(3) portion of its order. The Board found that the interrogation of employees, the confiscation of union materials, the timing of the wage increase, and the changing of the attendance policy also constituted objectionable conduct affecting the election. It thus issued a cease-and-desist order, set aside the results of the election, and ordered a new one. Id. at 12.

Perdue now petitions for review of the Board's findings regarding the wage increase, the changed attendance policy, and the interrogation of employees. Perdue also challenges the ALJ's exclusion of certain evidence as a sanction for the company's violation of a subpoena. The Board cross-applies for enforcement.

II

We begin with the company's challenge to the ALJ's exclusion of evidence. Prior to the hearing, the Board's General Counsel served Perdue's human resources manager, Jimmy Chappell, with a subpoena duces tecum requesting notes and other records "which reflect the content of meetings between Jimmy Chapel [sic] and employees conducted between May 1, 1995 and June 15, 1995." Although Perdue produced undated notes of meetings that it asserted occurred on or about May 11, it refused to produce any other documents relating to meetings occurring between May 1 and June 15. Perdue argued that the subpoena was "overly broad" because, although the subpoena sought documents for a six-week period, the original complaint alleged violations by Chappell only on or about May 11. Rejecting Perdue's argument and quoting the Federal Rules of Evidence's definition of "relevant evidence," the ALJ concluded that the company's view of relevance was overly narrow, noting that six unfair labor practice allegations named Chappell, that witnesses testified to meetings Chappell held from March to late May, and that the notes could contain "admissions relating to other aspects of the case." Cooking Good Div., 323 N.L.R.B. No. 50, at 5, 1997 WL 156724. Pointing out that Perdue claimed no privilege and neither asked for in camera review of the disputed notes nor offered any other reason for refusing to produce them, the ALJ barred the company from introducing virtually any evidence regarding Chappell's meetings, including the May 11 meetings for which Perdue had provided notes. Id.

Perdue challenges the ALJ's ruling on two accounts: It claims that documents relating to the June meetings were irrelevant; it also claims that having produced all requested documents regarding Chappell's May 11 meetings, it should have been allowed to present testimony and documentary evidence about those meetings. Reviewing the ALJ's ruling for abuse of discretion, Dayton Hudson Dep't Store Co. v. NLRB, 79 F.3d 546, 552 (6th Cir.1996), we reject both arguments.

Section 11(1) of the National Labor Relations Act, 29 U.S.C. § 161(1), authorizes subpoenas for evidence "that relates to any matter under investigation or in question." Id. Information sought in an administrative subpoena need only be "reasonably relevant." United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 94 L.Ed. 401 (1950); see also NLRB v. Line, 50 F.3d 311, 314 (5th Cir.1995) (applying Morton Salt's "reasonably relevant" standard to NLRB subpoenas). Citing In re Sealed Case (Admin. Subpoena), 42 F.3d 1412 (D.C.Cir.1994), where we quashed a subpoena seeking information about "other wrongdoing, as yet unknown," id. at 1419, Perdue argues that the request for documents regarding meetings in June lies beyond even the broadest notions of relevance. We disagree. Unlike the subpoena in In re Sealed Case, the subpoena here sought not information regarding "other wrongdoing, as yet unknown," but information relating to specific allegations of wrongdoing contained in the General Counsel's complaint. As the ALJ found, the subpoenaed material could have provided evidence regarding specific allegations not involving Chappell and/or events occurring from May 1 to the June 15 election. Under these circumstances, the ALJ's conclusion that the subpoenaed material was relevant did not amount to an abuse of discretion.

We reach the same conclusion with respect to the ALJ's preclusion order. "The preclusion rule," we have said, "prevents the party frustrating discovery from introducing evidence in support of his position on the factual issue respecting which discovery was sought." Atlantic Richfield Co. v. U.S. Dep't of Energy, 769 F.2d 771, 794 (D.C.Cir.1984). Pointing out that it had not "frustrat[ed] discovery" with respect to Chappell's May 11 meetings, Perdue argues that it should have been allowed to offer testimony about those meetings and to establish, contrary to the testimony of certain employees, that Chappell conducted no other meetings during the month. Once a party's challenge to a subpoena has been rejected, however, the party cannot "pick and choose which parts ... it will obey and which parts it can ignore." UAW v. NLRB, 459 F.2d 1329, 1342 (D.C.Cir.1972). A party refusing to comply with a subpoena risks application of the preclusion rule: "Without an adequate evidentiary sanction, a party served with a discovery order in the course of an administrative adjudicatory proceeding has no incentive to comply, and ofttimes has every incentive to refuse to comply." Atlantic Richfield, 769 F.2d at 795.

III

Turning to Perdue's substantive challenges, we will not set aside a Board decision unless, "reviewing the record as a whole, it appears that the Board's factual findings are not supported by substantial evidence or that the Board acted arbitrarily or otherwise erred in applying established law to the facts at issue." Synergy Gas Corp. v. NLRB, 19 F.3d 649, 651 (D.C.Cir.1994). Our review of the Board's factual conclusions is "highly deferential." LCF, Inc. v. NLRB, 129 F.3d 1276, 1281 (D.C.Cir.1997); see also Synergy Gas Corp., 19 F.3d at 654 (Silberman, J., concurring) ("Our review, both in theory and in practice, is quite deferential."). "If...

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