NATIONAL LABOR RELATIONS BOARD v. DURHAM SCHOOL SERVICES LP

Filing 21

ORDER: (1) The Chief Magistrate Judge's 19 Report and Recommendation is adopted in part and rejected in part as follows: The Court adopts the Report and Recommendation and incorporates it by reference in this Order insofar as it recommends enforcement of the administrative subpoena but rejects the Report and Recommendation insofar is it recommends an award of attorney's fees, and it is hereby modified consistent with this Order. (2.) The NLRB's application for enforcement of administrative subpoena duces tecum B-716522 is GRANTED. (3.) Respondent Durham School Services, L.P., is Ordered to respond in full to subpoena duces tecum B-716522 as issued by the Board within 25 calendar days fro m this Order, and to appear at the Board's offices at National Labor Relations Board, Region 15, 600 S. Maestri Place, 7th Floor, New Orleans, Louisiana, to produce the subpoenaed documents. (4.) Upon failure by Respondent Durham to comply wi th this Courts order, the Court reserves the right to impose sanctions for contempt upon motion by the NLRB. (5.) The NLRB's request for costs is GRANTED and the request for attorney'sfees is DENIED. Signed by CHIEF JUDGE M CASEY RODGERS on 1/12/2015. (djb)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

NATIONAL LABOR RELATIONS BOARD,
Applicant,

v.

Case No.: 3:14mc52/MCR/EMT

DURHAM SCHOOL SERVICES, L.P.,
Respondent.
_________________________________/
ORDER
Pending before the Court is the Chief Magistrate Judge’s Report and
Recommendation (“R&R”) dated October 10, 2014 (doc. 19), recommending enforcement
of an administrative investigatory subpoena issued by the National Labor Relations Board
(“NLRB”) as well as an award of costs and imposition of attorney’s fees against
Respondent Durham School Services, L.P. (“Durham”). The parties have been furnished
a copy of the R&R and have been afforded an opportunity to file objections pursuant to
Title 28, United States Code, Section 636(b)(1). Durham filed objections (doc. 20), arguing
that its lack of knowledge of union activity and other factual errors by the Magistrate Judge
require the Court to reject the conclusions of the R&R and also that the award of attorney’s
fees in this administrative subpoena enforcement proceeding is contrary to law. Having
fully considered the R&R and having made a de novo determination of Durham’s timely
filed objections, the Court finds that the R&R should be adopted in part and rejected in
part, as follows.
The Court agrees with and adopts in full the R&R’s background statement, which
explains that the NLRB issued a subpoena duces tecum to Durham for the production of
records in relation to its investigation of claims of retaliation after Durham discharged
employees Linda Cramer and Christina Marrero. The Court also agrees with and adopts
in full the R&R’s discussion pertaining to the enforcement of the administrative subpoenas.

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The Court rejects Durham’s argument that the Magistrate Judge erred by failing to discuss
whether there was evidence demonstrating Durham’s knowledge of the alleged union
activity of Linda Cramer and Christina Marrero and by relying only on the NLRB’s
statements that they "openly supported the union." As the Magistrate Judge correctly
noted, the Court’s role at this stage is narrow. The agency need demonstrate only that the
evidence sought is “material and relevant to a lawful purpose of the agency” and
“<reasonably relevant’” to the charges being investigated; the charges do not have to be
proven at this stage. EEOC v. Kloster Cruise, Ltd., 939 F.2d 920, 922 (11th Cir. 1991)
(“The role of a district court in a proceeding to enforce an administrative subpoena is
sharply limited; inquiry is appropriate only into whether the evidence sought is material and
relevant to a lawful purpose of the agency.”); Federal Election Com'n v. Fla. for Kennedy
Committee, 681 F.2d 1281, 1284 (11th Cir. 1982) (quoting United States v. Morton Salt
Co., 338 U.S. 632, 652 (1950)); see also EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d
757, 761 (11th Cir. 2014) (stating the information requested in an administrative
investigative subpoena must be “relevan[t] to the contested issues that must be decided
to resolve that charge”). Durham’s reliance on Delchamps, Inc. v. N.L.R.B., 585 F.2d 91,
93 (5th Cir. 1978);1 Gestamp S. Carolina, L.L.C. v. N.L.R.B., 769 F.3d 254, 256 (4th Cir.
2014); and In Re Tomatek, Inc., 333 NLRB 1350, 1350 n.1 (N.L.R.B. 2001), is misplaced
because these cases each involved the substantive review of an administrative decision
on an unfair labor practices charge; none involved an investigative subpoena enforcement
proceeding as is the case here. Moreover, Durham’s argument that there was insufficient
evidence of knowledge is an issue bearing on the ultimate merits of the case and is
therefore outside the Court’s scope of inquiry in this administrative subpoena enforcement
action. The Court finds that the Magistrate Judge appropriately limited the inquiry in this
proceeding to whether the information sought was reasonably relevant to the charges
being investigated, and the Court agrees that it was.

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the form er Fifth Circuit handed down prior to the close of
business on Septem ber 30, 1981.
Case No.: 3:14mc52/MCR/EMT

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Durham also objects to what it characterizes as “critical factual errors” that
undermine the Magistrate Judge’s conclusion, specifically that it was error to find Bobby
Johnson a comparator for both Cramer and Marrero, when his history was only similar to
that of Cramer. Durham also argues that the NLRB will be embarking on a mere “fishing
expedition” if permitted to further explore factual issues related to comparators where none
of the original non-union comparators identified had histories similar to Marrero or Cramer
and additionally that the Magistrate Judge incorrectly found that Durham’s position
regarding the lack of comparators "became inaccurate when the Board received
information relevant to Bobby Johnson." This objection is more of a dispute with the
wording in the R&R than anything substantive, and in any event, the Magistrate Judge
simply found that once information regarding Bobby Johnson came to light, showing
differential treatment, it was reasonable to inquire further. The Court agrees and finds the
requested additional information reasonably relevant to identifying potential comparators
for Cramer and Marrero.2
Durham also argues that attorney’s fees are not available in this administrative
enforcement action and that the Magistrate Judge incorrectly likened this proceeding to a
civil discovery dispute when she awarded fees pursuant to Rule 37 of the Federal Rules
of Civil Procedure. The Court agrees. Although the Federal Rules of Civil Procedure
undoubtedly apply to this type of enforcement proceeding, they do so only “to the extent
practicable,” see Fed. R. Civ. P. 81, and Rule 37 simply does not apply, either practically
or legally, to an administrative enforcement action. By its terms, Rule 37 applies to
discovery matters in a civil case and provides for an award of attorney’s fees in some
circumstances if a motion to compel a discovery response is granted. Fed. R. Civ. P.
37(a)(5). To be sure, an administrative enforcement action is not a “motion” to compel
“discovery” within the meaning of the Federal Rules. Rather, it is an original action, the
resolution of which disposes of the entire action. See EEOC v. Deer Valley Unified Sch.
Dist., 968 F.2d 904, 906 (9th Cir. 1992) (stating, “a subpoena enforcement action is not a

2

The objection does not challenge the R&R’s conclusion that the subpoena is not overly
burdensom e.
Case No.: 3:14mc52/MCR/EMT

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discovery motion” but an original action);3 see also Linde Thomson Langworthy Kohn &
Van Dyke, P.C. v. ADR Trust Corp., 5 F.3d 1508, 1513 (D.C. Cir. 1993) (citing Deer Valley
and stating an administrative investigation proceeding is “unlike a discovery procedure”).4
The Court further notes that although the NLRA is silent regarding an award of attorney’s
fees on resolution of the initial enforcement proceeding, the statute expressly authorizes
attorney’s fees and costs in the event a party fails to obey an order of the district court
enforcing compliance.

See 29 U.S.C. § 161(2).

Under general rules of statutory

construction, the statute’s express reference to an award of attorney’s fees in situations
of disobedience to a court order together with its omission of any reference to attorney’s
fees in relation to the enforcement proceeding itself strongly suggest that Congress did not
intend to authorize an award of attorney’s fees in the original enforcement proceeding.
See generally United States v. Castro, 837 F.2d 441, 442 & n.2 (11th Cir. 1988) (“A
general guide to statutory construction states that the mention of one thing implies the
exclusion of another; expressio unius est exclusio alterius.” (internal marks omitted)).5
Because Durham has neither violated a discovery rule, nor disobeyed an order of this
Court, the undersigned rejects the recommendation to award attorney’s fees pursuant to
Rule 37 and will modify the R&R accordingly.
Accordingly, it is now ORDERED as follows:
1.

The Chief Magistrate Judge’s Report and Recommendation is adopted in part

and rejected in part as follows: The Court adopts the Report and Recommendation and
incorporates it by reference in this Order insofar as it recommends enforcement of the

3

Curiously, NLRB v. Cable Car Advertisers, Inc., 319 F.Supp. 2d 991 (N.D. Cal. 2004), a case on
which the Magistrate Judge and the NLRB rely, does not m ention the Ninth Circuit’s Deer Valley decision.
4

Although the Federal Rules provide for attorney’s fees as a contem pt sanction under Rule 45, this
Rule expressly applies only where the subpoena was issued by a court in a pending action, and the Advisory
Com m ittee Notes to the Rule expressly state that the Rule “does not apply to the enforcem ent of subpoenas
issued by adm inistrative officers and com m issions pursuant to statutory authority. The enforcem ent of such
subpoenas by the district courts is regulated by appropriate statutes.” See Fed. R. Civ. P. 45, 1937 Advisory
Com m ittee Notes.
5

In reaching it’s decision on the attorney’s fees issue, the Court considered all of the district court
cases cited and discussed by the Magistrate Judge and the parties.
Case No.: 3:14mc52/MCR/EMT

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administrative subpoena but rejects the Report and Recommendation insofar is it
recommends an award of attorney’s fees, and it is hereby modified consistent with this
Order.
2.

The NLRB’s application for enforcement of administrative subpoena duces

tecum B-716522 is GRANTED.
3.

Respondent Durham School Services, L.P., is Ordered to respond in full to

subpoena duces tecum B-716522 as issued by the Board within TWENTY-FIVE (25)
calendar days from this Order, and to appear at the Board’s offices at National Labor
Relations Board, Region 15, 600 S. Maestri Place, 7th Floor, New Orleans, Louisiana, to
produce the subpoenaed documents.
4.

Upon failure by Respondent Durham to comply with this Court’s order, the

Court reserves the right to impose sanctions for contempt upon motion by the NLRB.
5.

The NLRB’s request for costs is GRANTED and the request for attorney’s

fees is DENIED.6

DONE AND ORDERED this 12th day of January, 2015.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

6

Durham did not challenge the award of costs.

Case No.: 3:14mc52/MCR/EMT