Raser Tanning Company v. NLRB, 13790.
| Decision Date | 20 June 1960 |
| Docket Number | No. 13790.,13790. |
| Parties | RASER TANNING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
M. Reese Dill, Cleveland, Ohio (of Merkel, Campbell, Dill & Zetzer, Cleveland, Ohio, on the brief), for petitioner.
Melvin Welles, Cleveland, Ohio (Jerome D. Fenton, Thomas J. McDermott, Marcel Mallet-Prevost, Frederick U. Reel, Alfred Avins, N.L.R.B., Washington, D. C., Regional Director Phillip Fusco, Cleveland, Ohio, on the brief), for respondent.
Before MARTIN, CECIL and WEICK, Circuit Judges.
Certiorari Denied June 20, 1960. See 80 S.Ct. 1601.
The Raser Tanning Company has petitioned this Court to review the proceedings of the National Labor Relations Board by which it found the petitioner guilty of unfair labor practices and to set aside its order of December 22, 1958. The Board filed an answer in which it requested enforcement of its order against the petitioner.
The hearing of the complaint filed before the Board was conducted by a Trial Examiner who made an intermediate report containing findings of fact and conclusions of law. Exceptions to the report filed on behalf of the Company were heard by a three member panel of the Board.
The Board adopted the findings, conclusions and recommendations of the Trial Examiner with some modifications and additions as noted in its decision. It found that the petitioner discharged seven employees in violation Section 8 (a) (3) and (1) of the Act, 29 U.S.C.A. § 158(a) (1, 3).
The petitioner requested an oral hearing before the entire Board. This was not allowed and it was referred to a three member panel in accordance with Section 153(b) Title 29 U.S.C.A. Such reference is discretionary with the Board and no error was committed.
One of the claims of the petitioner is that the respondent erroneously denied it access to pre-trial statements of witnesses taken by respondent's representatives.
Counsel for the petitioner made the following motion at the beginning of the hearing before the Trial Examiner: "At this time, your Honor, the Respondent moves for the — an order requiring the General Councel and the Charging Union to provide to the Respondent the copies of all affidavits, statements and other matters which either the Charging Union or the General Councel have obtained from any witnesses involved in this proceeding, in order that the Respondent may be apprised of the details of these so-called Charges, and thus be in a position to prepare its defense properly." P. 15 Official Report of Proceedings.
Subpoenas were issued with the following request: "We are requesting on the face of the subpoenas for copies of all statements, affidavits and other written matter developed by or received by the Charging Union or the General Councel with respect to all items of the Complaint and all of the material during the investigation leading up to the issuance of the Complaint, including, such statements and affidavits as led to the issuance of, and investigation of the first, second and third amended Charges, and, covering all witnesses, all employees of the Raser Tanning Company in any manner involved in this proceeding, including, executives of the company and subordinate employees." P. 17 Official Report of Proceedings.
There is no authority for issuing subpoenas containing such comprehensive demand. It would be impossible to comply with such a request short of turning over to the petitioner the files of all investigative agents, the files of counsel for the Board and any memorandums made by any one who ever had anything to do with the case. The request is so broad that it is meaningless and the Trial Examiner was fully justified in quashing the subpoenas.
If there is any merit at all to the claim it lies in the request contained in the motion for production of pre-trial statements of witnesses.
In National Labor Relations Board v. Adhesive Products Corporation, 2 Cir., 258 F.2d 403, the court held that a written statement or memorandum which a witness had made prior to his testifying and from which he had refreshed his recollection should have been produced for the benefit of counsel in cross-examination. The Court gave as the basis of this ruling the rules set forth in the Jencks decision, Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. It held further that the rules of the Jencks case were applicable to administrative hearings as well as criminal trials. Whether or not the doctrine of that case should be extended to administrative hearings is not now before us.
The Jencks case involved written and oral reports of witnesses made over a period of time contemporaneously with the happening of events about which they testified. The witnesses who testified on behalf of the Labor Board in the hearing before the Trial Examiner made no such reports.
Witness Adell Metcalfe testified on cross-examination that he gave a statement to a Mr. Gieser. Counsel for the petitioner did not pursue the matter and made no demand for the production of the document. P. 138 Official Report of Proceedings. Kenneth Barlow testified (p. 183 Official Report of Proceedings) that he gave a signed statement to either Mr. Griesbach or Mr. Gieser. Counsel for petitioner asked the witness several questions as to whether or not his testimony was the same as the statements. He made no request for production.
The Official Report of the Proceedings does not show that any other witness made a pre-trial statement.
During the cross-examination of George Edward Reed counsel for the Board held a paper in his hand. Counsel for the petitioner took this to be a statement of the witness and made a demand for it. It developed from the witness himself that he had not signed a statement.
In National Labor Relations Board v. Adhesive Products Corporation, supra, counsel made demand for production when it developed that there was a statement. After this decision the Board amended section 102.95 of its Regulations by adding (29 U.S.C.A.Appendix): While this amendment to the regulation was not in effect at the time of the hearing before the Trial Examiner it provides the usual and an orderly procedure for the production of such a statement.
In Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, decided under the discovery rules of the Federal Rules of Civil Procedure, 28 U.S.C.A., the Court did not require counsel to submit to his adversary pre-trial statements of his witnesses. The Court said at page 514 of 329 U.S., at page 395 of 67 S.Ct.:
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