National Labor Relations Board v. International Union of Operating Engineers, Local 627
Filing
12
OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting 1 Motion for Miscellaneous Relief (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
NATIONAL LABOR RELATIONS
BOARD,
Applicant,
v.
INTERNATIONAL UNION OF
OPERATING ENGINEERINGS,
LOCAL 627,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 16-CV-622-GKF-PJC
OPINION AND ORDER
Before the court is the Application of the National Labor Relations Board (“NLRB”) for
Order Enforcing Subpoena Duces Tecum [Doc. No. 1]. For the reasons set forth below, the
NLRB’s application is granted.
I. Procedural Background
This dispute arises from alleged violations of the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 151, et seq., by respondent International Union of Operating Engineers,
Local 627 (the “IUOE”). The NLRB is an administrative agency of the United States
Government charged with investigating and remedying unfair and discriminatory labor practices.
The IUOE is a labor organization based that operates hiring halls in Tulsa and Oklahoma City,
and whose members are signatories to collective-bargaining agreements. Generally speaking,
the IUOE uses hiring halls and out-of-work referral lists to secure employment for union
members.
On April 12, 2013, the NLRB issued a decision (the “2013 Order”) finding the IUOE
violated the NLRA by: (1) denying Stacy M. Loerwald’s requests to examine the out-of-work
referral list; (2) removing her from the list; (3) denying Loerwald’s request to re-register for the
list; and (4) refusing to stamp her Oklahoma Employment Security Commission work search
book. On review, the Tenth Circuit Court of Appeals held the case in abeyance pending the
Supreme Court’s decision in Canning v. N.L.R.B., 124 S.Ct. 2250 (2014). In light of Canning,
the Tenth Circuit remanded the case to the NLRB for reconsideration.
On November 5, 2014, a properly-constituted NLRB panel incorporated and adopted the
2013 Order (the “2014 Order”). To remedy the NLRA violations described above, the NLRB
ordered the IUOE to: (1) grant Loerwald access to the out-of-work referral list; (2) restore her to
the proper position of priority on the list; (3) make Loerwald whole for losses of earnings or
benefits; (4) remove any reference to Loerwald’s absence from the list from its files; (5) notify
Loerwald of its remedial action; (6) inform her that prior absences from the list would not
adversely affect future employment placement; (7) provide the NLRB all hiring hall records,
payroll records, social security payment records, timecards, personnel records and reports, and
all other relevant documents to analyze the amount of backpay owed; (8) post required notice to
IUOE members; and (9) execute and return a Certification of Compliance. [Doc. 1-2, pp. 16–
17]. The Tenth Circuit enforced the NLRB’s 2014 Order on November 20, 2014 (the “Loerwald
Judgment”). [Id. at 20–25].
On December 14, 2015, the NLRB requested the IUOE provide documents
demonstrating compliance with the Loerwald Judgment. The IUOE responded, providing the
NLRB postings and notices; a check to Loerwald in the amount of $16,879.58; excerpts of
relevant collective-bargaining agreements; dispatch history for IUOE offices for parts of 2011
and 2012; and work, dispatch, member qualification, and health and welfare history for Loerwald
and certain other employees. While the compliance package did not include a copy of the
2
required expunction letter, the IUOE certified that it removed any record of Loerwald’s absence
from its out-of-work list and notified Loerwald of such.
In January 2016, the NLRB contacted the IUOE and requested information concerning its
calculation of Loerwald’s backpay and posting of notice. The IUOE claimed it posted the
required notice in 2013, but declined to provide a written account of its backpay calculations. To
that end, the NLRB notified the IUOE of its noncompliance with the Loerwald Judgment .
Consequently, the NLRB’s Regional Office recommended institution of contempt proceedings
with its Contempt, Compliance, and Special Litigation Branch (“CCSLB”). The CCSLB
informed the IUOE of potential contempt proceedings, but received no reply.
On May 17, 2016, CCSLB issued Subpoena Duces Tecum B-1-RIXX41 (“the subpoena”)
directing the IUOE to respond to interrogatories and produce documents concerning its
compliance with the Loerwald Judgment. [Doc. No. 1-2, pp. 53–60]. The IUOE petitioned the
NLRB to revoke the subpoena on May 23, 2016, which the CCSLB opposed on June 10, 2016.
On August 10, 2016, the NLRB denied the IUOE’s petition to revoke and directed compliance
with the subpoena. The IUOE was instructed in writing to describe materials already provided
and state whether such documents constituted all requested documents. The CCSLB
immediately thereafter contacted the IUOE to discuss compliance with the subpoena. The IUOE
did not respond. Accordingly, the NLRB has now moved to enforce the subpoena in this court.
II. Legal Standard
Section 11(1) of the NLRA authorizes the NLRB to issue subpoenas in connection with
ongoing investigations or proceedings. 29 U.S.C. § 161(1); see N.L.R.B. ex rel. Int’l Union of
Elec., Radio, & Machine Workers, AFL-CIO-CLC v. Dutch Boy, Inc., Nos. CIV-78-0238-T, 0239-T, 1978 WL 1624, at *2–3 (W.D. Okla. Apr. 24, 1978). That grant derives from the
3
NLRB’s “broad investigatory authority,” which is more akin to a grand jury’s function than the
judiciary’s. N.L.R.B. v. Midwest Heating & Air Conditioning, Inc., 528 F.Supp.2d 1172, 1176
(D. Kan. 2007). To that end, Section 11(2) requires district courts to enforce subpoenas that: (1)
are jurisdictionally proper; (2) are procedurally sound; and (3) request relevant and material
evidence. 29 U.S.C. § 161(2); Dutch Boy, 1978 WL 1624, at *2; N.L.R.B. v. Vista Del Sol
Health Servs., 40 F.Supp.3d 1238, 1256 (C.D. Cal. 2014). Accordingly, a district court’s scope
of review is “narrow.” Midwest Heating, 528 F.Supp.2d at 1176; Vista Del Sol Health Servs., 40
F.Supp.3d at 1255–56.
III. Analysis
Section 11(2) supports enforcement of the subpoena in this case. First, the court has
jurisdiction. Section 11(2) authorizes enforcement of an NLRB subpoena by any district court
sitting in the same jurisdiction as: (1) the inquiry at issue; or (2) where the allegedly
noncompliant party resides or transacts business. 29 U.S.C. § 161(2). Here, Local 627 of the
IUOE resides in, transacts business in, and was allegedly noncompliant in Tulsa, Oklahoma,
[Doc. No. 1, p. 1, ¶ 2]; the fact additional IUOE offices also exist in Oklahoma City is irrelevant.
Thus, this court qualifies as a proper enforcement authority under Section 11(2). See 29 U.S.C. §
161(2).
Moreover, the subpoena was issued under the NLRB’s investigatory authority—
specifically, pursuant to an investigation of the IUOE’s compliance with and contempt of the
Loerwald Judgment. See N.L.R.B. v. Baywatch Sec. & Investigations, No. Civ. A H-04-220,
2005 WL 1155109, at *2 (S.D. Tex. Apr. 28, 2005) (“The Subpoena was issued pursuant to the
Board’s subpoena power for a lawful purpose—to investigate and ensure Respondent’s
compliance with the Fifth Circuit’s January 22, 2003, Order.”). That is a proper purpose—the
4
NLRB may use Section 11(1) investigatory powers “to determine whether a respondent . . . may
be violating [an] order” enforced by a court of appeals. See N.L.R.B. v. Interstate Material
Corp., 930 F.2d 4, 5 (7th Cir. 1991); see also N.L.R.B. v. Steinerfilm, Inc., 702 F.2d 14, 15 (1st
Cir. 1983) (Breyer, J.) (confirming NLRB’s authority to “independently investigat[e] possible
contempt” especially where “the contempt in and of itself would constitute a separate unfair
labor practice”); cf. Amalgamated Util. Workers v. Consol. Edison Co. of N.Y., 309 U.S. 261, 269
(1940) (explaining that NLRB’s powers “necessarily embrace[ ] exclusive authority to institute
proceedings for violation of the court’s decree directing enforcement”).
Second, the subpoena was procedurally proper. The IUOE argues the NLRB failed to
comply with 29 U.S.C. § 161(4) and Fed. R. Civ. P. 45. Neither contention has merit. Section
11(4) of the NLRA prescribes the methods for serving a Section 11(1) subpoena, including “by
leaving a copy thereof at [a person’s] principal office or place of business.” 29 U.S.C. § 161(4);
see also 29 C.F.R. § 102.113(c). Here, the NLRB utilized a courier service (UPS) to serve the
IUOE at its principal place of business. [Doc. No. 1-2, p. 62–63]. That passes muster under
NLRB rules and regulations. See In re Offshore Mariners Un., 338 NLRB 745, 745 (2002)
(permitting Federal Express to serve subpoena). And the IUOE’s caselaw is not to the
contrary—each case addresses service under the Federal Rules of Civil Procedure, not Section
11(1). See CF&I Steel Corp. v. Mitsui & Co. (U.S.A.), Inc., 713 F.2d 494, 496 (9th Cir. 1983)
(interpreting Rule 45(c)’s witness fee and mileage provision); Salley v. Bd. of Governors, Univ.
of N.C., 136 F.R.D. 417, 418–19 (M.D.N.C. 1991) (interpreting Rule 5(b)’s service
requirement); Audio Enterprises, Inc. v. B&W Loudpseakers of Am., 957 F.2d 406, 409 (7th Cir.
1992) (interpreting Rule 4(c)’s service provision). For this reason, the IUOE’s reliance on Rule
45(c) also fails. While Rule 45 requires that compliance with a subpoena occur within 100 miles
5
of a person’s residence or place of business, Fed. R. Civ. P. 45(c), Section 11(1) expressly
permits the production of evidence from “any place in the United States or any Territory or
possession thereof.” 29 U.S.C. § 161(1).1 Thus, the subpoena properly issued under the terms of
the NLRA.
Third, the subpoenaed materials touch and concern the matter under investigation. See
Cudahy Packing Co. v. N.L.R.B., 117 F.2d 682, 694 (10th Cir. 1941). The IUOE does not claim
the requested evidence is irrelevant to the NLRB’s investigation. Rather, it argues the subpoena
is insufficiently specific. [Doc. No. 7, p. 5, ¶ 10]. The court does not agree. The subpoena
requests: (1) documents substantiating the IUOE’s compliance with the Loerwald Judgment; (2)
records necessary to compute backpay; and (3) a narrative description of the IUOE’s compliance
efforts.2 [Doc. No. 1-2, pp. 59–60]. Each is plainly relevant to the pending NLRB investigation
and contemplated contempt or compliance proceedings. See Interstate Material Corp., 930 F.2d
at 5; Steinerfilm, Inc., 702 F.2d at 15; Baywatch Sec. & Investigations, 2005 WL 1155109, at *2;
N.L.R.B. v. Baker, No. 97-124-M, 1998 WL 1050895, at *4 (E.D. Va. Jan. 22, 1998) (“The
NLRB . . . is entitled to seek information about the respondents’ present financial ability to meet
any remedial obligations.”).
1
The IUOE also objects to the lack of a certified record. [Doc. No. 7, pp. 1–2, ¶1]. The NLRA,
however, imposes no such requirement. Compare 29 U.S.C. § 160(f) (directing filing of
certified record with court of appeals on review of order fixing unfair labor practice liability or
compliance obligations) with 28 U.S.C. § 2112(d) (exempting “proceedings to review or enforce
those orders of administrative agencies” or “boards” from certified record requirements).
2
The IUOE objects that Section 11(1) subpoena authority does not encompass interrogatories.
[Doc. No. 7, p.6, ¶ 12]. That argument lacks a textual basis in the NLRA, see 29 U.S.C. §161(1),
and has rejected by federal courts, see, e.g., N.L.R.B. v. Alaska Pulp Corp., 1995 WL 389722, at
*5 (D.D.C. May 25, 1995) (“Through the use of a subpoena, the Board may require the
production of evidence . . . . Such production does not exclude the use of interrogatories to
obtain evidence.”) (citation omitted).
6
The IUOE also argues the subpoena seeks documents and information already in the
NLRB’s possession. [Doc. No. 7, pp. 6–8, ¶ 13]. To start, the NLRB disputes that assertion,
claiming the IUOE has failed to produce “all hiring hall records” from September 2010 to
September 2013, information concerning backpay calculations, and evidence of compliance the
Loerwald Judgment’s notice requirements. [Doc. No. 9, pp. 4–5]; Dutch Boy, Inc., 1978 WL
1624, at *4. And “[e]ven if [the IUOE] does not possess any additional documents beyond what
. . . has already been produced, the NLRB cannot know th[at] in the absence of a specific
representation by [the IUOE].” See N.L.R.B. v. Jo-Dan Madalisse Ltd., LLC, No. 15-mc-00228,
2015 WL 9302922, at *3 (E.D. Pa. Dec. 21, 2015). Nothing in the record establishes that “the
production of the requested records and documents would place such an unreasonable burden [on
the IUOE] so as to be oppressive.” See Dutch Boy, Inc., 1978 WL 1624, at *4. Accordingly,
enforcement of the subpoena is proper.3
Fourth, the NLRB seeks an award of fees and costs incurred in litigating this
enforcement action. [Doc. No. 1, p. 7]. The court declines that request. “Neither [Section]
11(1) nor [Section] 11(2) . . . provides for payment of costs or fees incurred in enforcing a
subpoena in a district court.” See Baywatch Sec. & Investigations, 2005 WL 1155109, at *3.
And though some courts have awarded such relief under Rule 37, see id. at *3; N.L.R.B. v. Cable
Car Advertisers, Inc., 319 F.Supp.2d 991, 999–1001 (N.D. Cal. 2004), the court finds doing so
here would be inequitable as the court’s analysis—and NLRB’s litigating position—rely on the
firewall between the Federal Rules of Civil Procedure and Section 11(1).
3
To the extent the subpoena calls for materials protected by the attorney-client privilege or work
product doctrine, the IUOE must submit a privilege log in accordance with paragraph 4 of the
subpoena. [Doc. No. 1-2, p. 57–58, ¶ 4].
7
WHEREFORE, the Application of the National Labor Relations Board for Order
Enforcing Subpoena Duces Tecum [Doc. No. 1] is hereby granted. The NLRB’s request for fees
and costs is denied.
IT IS SO ORDERED this 8th day of November, 2016.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?