National Labor Relations Board v. Sidney Friedman, Comptroller, and Local 108, International Ladies' Garment Workers' Union, Afl-Cio, Intervenor

352 F.2d 545
CourtCourt of Appeals for the Third Circuit
DecidedNovember 23, 1965
Docket15324
StatusPublished
Cited by21 cases

This text of 352 F.2d 545 (National Labor Relations Board v. Sidney Friedman, Comptroller, and Local 108, International Ladies' Garment Workers' Union, Afl-Cio, Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Sidney Friedman, Comptroller, and Local 108, International Ladies' Garment Workers' Union, Afl-Cio, Intervenor, 352 F.2d 545 (3d Cir. 1965).

Opinions

STALEY, Circuit Judge.

The Regional Director for the Fourth Region of the National Labor Relations Board, on the basis of a charge filed by Local 108 of the International Ladies’ Garment Workers’ Union, and after investigation, has issued a complaint alleging violation of § 8(a) (1) and (3) [546]*546of the Labor Management Relations Act by respondent Bannon Mills of Pennsylvania and other companies. The case was called for hearing before an examiner on August 3, 1964. In the interim, the General Counsel had obtained from the Board subpoenas requiring respondent companies to produce certain records at the hearing. On their refusal to do so, this proceeding was brought in the district court pursuant to 29 U.S.C. § 161(2). The district court ordered compliance with the subpoenas with modifications. Because it is important that the adjourned unfair labor practice proceeding be resumed as soon as possible, we have expedited the appeal which followed.1

The essential facts are as follows: On October 22, 1963, Local 108 of the International Ladies’ Garment Workers’ Union filed with the General Counsel a charge which alleged that respondent Bannon had arranged the transfer of work from its plant in Lebanon, Pennsylvania, to plants of certain other respondents, all of which are alleged to be part of an integrated operation.2 This happened shortly before the charging union had obtained collective bargaining rights at the Lebanon plant and as it was about to commence collective bargaining negotiations.3 The complaint followed.

The subpoenas duces tecum required the production of books and records necessary for the prosecution of the charge. In response to the subpoenas, some material was furnished at the hearing on August 5, 1964, but the respondents refused to comply fully with the subpoenas.

Although several grounds of objection to the subpoenas were raised at various stages of the proceedings, the only objection made and adhered to on this appeal stems from the announced intention of the General Counsel to use a union accountant and economist to analyze the records. In an attempt to meet the objections of the respondents, and with the acquiescence of the General Counsel, the order of the district court4 provided that the charging-party personnel used in the examination of the evidence were not to be permitted to make copies, or reveal the content of the documents, or use the information for any purpose other than the prosecution of, preparation of, and participation in the present action. At the suggestion of the union, any information which might lead to the identification of respondents’ customers and suppliers is to be deleted under the direction of the General Counsel. Respondents have declined to comply with the order even as modified by the protective provisions; instead, they have continued to try to “bargain” with the General Counsel. They now offer to help to obtain independent experts and to be [547]*547taxed for the costs of their services in the event that the Board is successful on the merits of the unfair labor practice charge.

Before beginning analysis of appellants’ arguments, it is well for us to state the scope of review permitted in these cases. In Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450, 453, 136 A.L.R. 883 (C.A.6, 1941), the court stated: “The enforcement of the subpoena is thus confided to the discretion of the District Court, which is to be judicially exercised. We think that the review in this case extends no further than the determination as to whether or not there was an abuse of its discretion.” See also the concurring opinion of Mr. Justice Whittaker in NLRB v. Duval Jewelry Co., 357 U.S. 1, 8, 78 S.Ct. 1024, 2 L.Ed.2d 1097 (1958).

As distilled from their lengthy brief, appellants’ position appears to be this. They concede that the information sought is within the inquisitional power of the Board to obtain. United States v. Morton Salt Co:, 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). They admit that these cases have limited the ancient prohibition against “fishing expeditions,” see FTC v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696 (1924), because broad exercise of investigative power is necessary if the agencies are to fulfill the public interest purposes for which they were established. Morton Salt, supra, 640-643, 70 S.Ct. 357. They, however, contend that the General Counsel is, in essence, delegating the investigation to the union, and thus is acting beyond this authority as the broad investigative power of the Board cannot be exercised by private litigants.5 To support their position, appellants rely upon NLRB v. Kingston Trap Rock Co., 222 F.2d 299 (C.A.3, 1955). We agree that Kingston is dispositive of this argument; however, we interpret that case differently than do the appellants.

Although Kingston also involved a possible disclosure of subpoenaed information to the charging-party union, it is clearly distinguishable from the instant case, since it dealt with pre-complaint investigation while the present case involves post-complaint proof. This distinction is meaningful and could constitute a basis for our holding; however, we choose to rely upon Kingston to support affirmance, for, despite the aforementioned distinction, appellants’ contentions here are strikingly similar to those advanced in that case. The appellants there urged that the subpoenas were burdensome and oppressive because “the material sought would be of great value to the complaining Union and would be used by other Unions against Kingston * * Supra at 302. The language employed by the court in summarily dismissing this argument has relevance here:

“ * * * The astonishing contention that one may refuse to comply with a proper subpoena because of a self-conjured groundless suspicion that there is a ‘danger’ that a governmental employee will commit a wrongful act is brazen and insulting.” Supra at 302.

In the instant case, the General Counsel proposed to use the union experts only to the extent required for the prosecution of the unfair labor practice charge and within the limitations of the district [548]*548court’s protective order. We cannot presume that the General Counsel or the experts subject to his direction will act unlawfully or in disregard of the order of the district court. We need not point out that their failure to do so will subject them to contempt.

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Bluebook (online)
352 F.2d 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-sidney-friedman-comptroller-and-local-ca3-1965.