N.L.R.B. v. Line

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 13, 1995
• Docket: 94-10837
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS for the Fifth Circuit

_________________________ No. 94-10837 (Summary Calendar) _________________________

NATIONAL LABOR RELATIONS BOARD,

Plaintiff-Appellee,

versus

RONNY LINE, Defendant-Appellant.

____________________________________________________ Appeal from United States District Court for the Northern District of Texas _________________________________________________ (March 8, 1995)

Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:

Ronnie Line appeals the judgment of the district court

enforcing a subpoena duces tecum issued by the National Labor

Relations Board against him. For the following reasons, the

judgment of the district court is affirmed.

BACKGROUND

Ronnie Line is President of the Oklahoma Fixtures Company

("Oklahoma Fixtures"). Oklahoma Fixtures is an Oklahoma

corporation engaged in the manufacture of fixtures for retail

stores. Oklahoma Fixtures also performs the installation of these

fixtures in various states, including Texas. In 1975, Oklahoma

Fixtures allegedly entered into a collective bargaining agreement

with the Carpenters District Council of North Central Texas

1 ("Union"). This agreement related to work being performed by

Oklahoma Fixtures in the North Texas area.

In 1987, Oklahoma Fixtures is believed to have created

Oklahoma Installation, Inc. ("Oklahoma Installations"), as a non-

union entity engaged in the installation of Oklahoma Fixtures

products. Early in 1993, the Union became aware that Oklahoma

Installations was performing work in the North Texas area. The

Union filed an unfair labor practice charge with the National Labor

Relations Board ("NLRB"). The NLRB issued a subpoena for

information about the existence of the collective bargaining

relationship between Oklahoma Fixtures and the Union and

information about the relationship between the Oklahoma Fixtures

and Oklahoma Installations. The subpoena duces tecum requested

that Line, as President of Oklahoma Fixtures, produce and furnish

the information.

Line did not comply with the subpoena and the NLRB filed an

application to enforce the subpoena in the Northern District of

Texas. The district court granted the motion finding that the

subpoena was properly issued and that it was not overly broad.

Line appeals the judgment of the district court.

DISCUSSION

I. ABSENCE OF JURISDICTION ARGUMENT

Line contends that the district court did not have jurisdiction to enforce the subpoena.1 Jurisdiction to enforce a

subpoena of the NLRB is governed by 29 U.S.C. § 161(2) which in

pertinent part states:

(2) Court aid in compelling production of evidence and attendance of witnesses. In case of contumacy or refusal to obey a subpoena issued to any person, any district court of the United States or the United States courts of any Territory or possession, within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business . . . . [emphasis ours]

Line argues that the jurisdiction of inquiry in 29 U.S.C. § 161(2)

is the location of the subject of the subpoena. He argues that

since he, as the subject of the subpoena, is located in the state

of Oklahoma, the proper jurisdiction of this enforcement action is

in Oklahoma. Line cites no authority for this proposition and we

have found none. We, however, have found contrary authority.

In F.T.C. v. Jim Walter Corp., 651 F.2d 251 (5th Cir. 1981),

the Dallas Regional Officer of the Federal Trade Commission ("FTC")

had issued a subpoena to the Jim Walter Corporation for records

needed in an investigation it had undertaken. The defendant

refused to supply the information and the FTC went to the district

court in the Northern District of Texas to enforce the subpoena.

The FTC relied on the following statutory authority:

1 We note that we also have jurisdiction over the district court judgment. A judgment that disposes of all live claims is an appealable final judgment. Moody v. Seaside Lanes, 825 F.2d 81, 85 (5th Cir. 1987). In this case, the only claim before the district court was the NLRB's enforcement action-- which the district court adjudicated. Since all claims have been disposed of by the district court, its judgment is final and appealable. See 28 U.S.C. § 1291.

3 Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation, issue an order requiring such person, partnership, or corporation to appear before the commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.

15 U.S.C. § 49. The defendant's home base was in Florida, but one

of its subsidiaries had an office in the Northern District of

Texas. The defendant argued that the "jurisdiction of inquiry"

should be in Florida since that is where the corporate headquarters

was located. This Court rejected the argument. It stated that

"the statutory term 'inquiry' refers to the entire investigation

not just that portion of it involving the party subpoenaed." Id.

at 254. Because the FTC's inquiry was being carried on in the

Northern District of Texas, we found that jurisdiction was proper.

Id.

The subpoena enforcement statutes in Jim Walter Corp. and in

this case are similarly worded and have the same purpose. We

therefore hold that the place of inquiry in 29 U.S.C. § 161(2) is

the jurisdiction of the underlying NLRB investigation. In this

case, the NLRB's investigation is being undertaken in the Northern

District of Texas. Thus, the district court, being located in the

Northern District of Texas, had jurisdiction.

Line argues that the court in Jim Walter Corp. was not

presented the arguments that the subpoena itself defined the place

of inquiry and he is correct. However, in Jim Walter Corp., this

Court had to define the place of inquiry for 15 U.S.C. § 49. It is

4 this definition that we find applicable to this case. We therefore

find this argument to be without merit.

II. IMPROPERLY NAMED ARGUMENT

Line also argues that the subpoena was issued against him

personally and not against the corporation. After examining the

subpoena issued by the NLRB, we find that the subpoena was issued

against Line in his official capacity as President of Oklahoma

Fixtures Co. The subpoena was addressed to "Ronny Line, President"

and was sent to Oklahoma Fixtures' address. The subpoena refers to

the underlying labor relations case. An attachment to the subpoena

asks Line to supply company documents. Clearly, the subpoena was

served against Ronnie Line as President of Oklahoma Fixtures.

In Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55

L.Ed.2d 771 (1910), the Supreme Court stated that there were two

ways to obtain documents from a corporation, one could subpoena the

documents from the corporation or subpoena the documents from the

corporate officer who has custody of the documents. Id. at 375; 31

S.Ct. 542. Line, as President of Oklahoma Fixtures, would

presumedly have custody and control of the documents. We therefore

find this contention to be without merit.

III. IMPROPER VENUE ARGUMENT

Line contends that the subpoena enforcement action was filed

in the wrong venue. We find this argument to be without merit.

The definition of jurisdiction in 29 U.S.C. § 161(2) refers to any

"district court." Venue is necessarily defined as the appropriate

district court to file an action. See 28 U.S.C. § 1391(naming the

5 appropriate district courts where venue would be correct). Where

29 U.S.C. § 161(3) defines jurisdiction in a specific district

court, it is also specifying venue.

Every court that has addressed the subpoena enforcement

provisions for other federal agencies with statutes worded

similarly to 29 U.S.C. § 161 has concluded that venue and

jurisdiction are synonymous for these statutes. See e.g., FTC v.

Cockrell, 431 F.Supp. 558, 560 (D.D.C. 1977); SEC v. Smith, 1992 WL

67832 at 7 (N.D. Ill. 1992); United States v. Wilfred American

Corp., 1987 WL 10501 at 11 (D.D.C. 1987)(Department of Education

subpoena); United States v. Tesoro Petroleum Corp., 503 F.Supp.

868, 873 (D.D.C. 1980)(considering the Department of Energy's venue

choice to be identical to jurisdiction); see also FTC v. Jim Walter

Corp., 651 F.2d 251 (5th Cir. 1981)(considered whether jurisdiction

and venue was appropriate without distinguishing between them).

Because we have already held that jurisdiction was proper, venue is

also proper.

Line argues that the general venue requirements of 28 U.S.C.

§ 1391 determines the proper venue. We disagree. The provisions

of 28 U.S.C. § 1391 apply "except as otherwise provided by law."

See 29 U.S.C. § 1391(a) & (b). "[W]here Congress has dealt with a

particular venue problem . . . broader language in a general statue

will not overcome this even though literally applicable." Bruns,

Nordeman & Co. v. American National Bank & Trust Co., 394 F.2d 300,

303 (2nd Cir.) cert. denied, 393 U.S. 885, 89 S.Ct. 21 L.E.2d 125

(1968); see also Stonite Products Co. v. LLoyd Co., 315 U.S. 561,

6 54-567, 62 S.Ct. 780, 781-83, 86 L.Ed. 1026 (1942). In this case,

Congress created a specific venue requirement for NLRB enforcement

actions in enacting 29 U.S.C. § 161. We therefore hold that the

general venue requirements of 28 U.S.C. § 1391 are not applicable

in NLRB venue enforcement actions.

IV. UNENFORCEABLE SUBPOENA ARGUMENT

Line contends that the subpoena is unenforceable because: 1)

the subpoena is overly broad in the number of documents it seeks

because the statute of limitations relating to unfair labor charges

is six months and the subpoena seeks documents from five years ago;

and 2) there is no collective bargaining agreement. A subpoena

issued by an administrative agency may be enforced where the

investigation is within the authority of the agency, the demand is

not too indefinite, and the information sought is reasonably

relevant to the agency's investigation. United States v. Morton

Salt Co., 338 U.S. 632, 652-53, 70 S.Ct. 357, 369, 94 L.Ed. 401

(1950).

After examining the subpoena, we find that the documents are

relevant to the NLRB's investigation despite their five year reach.

The documents sought in the subpoena seek to establish the

existence of a collective bargaining agreement and whether Oklahoma

fixtures has established a non-union company to divert work away

from the unionized company. In regard to Line's argument

concerning the existence of a collective bargaining agreement, such

an argument goes to the substance of the complaint. As

acknowledged by Line, a party may not interpose a defense of an

7 underlying unfair labor practice charge in a subpoena enforcement

action. D.G. Bland Lumber Co. v. NLRB, 177 F.2d 555, 557-58 (5th

Cir. 1949); NLRB v. Dutch Boy, Inc., 606 F.2d 929, 933 (10th Cir.

1979). We therefore find this contention is without merit.

CONCLUSION

Because this subpoena enforcement action was filed in the same

district as the NLRB's inquiry, both jurisdiction and venue are

proper. The subpoena is also not overly broad. The judgment of

the district court enforcing the subpoena is AFFIRMED.