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MADDEN v. MILK WAGON DRIVERS U. LOCAL 753

May 20, 1964

ROSS M. MADDEN, REGIONAL DIRECTOR OF THE THIRTEENTH REGION OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
MILK WAGON DRIVERS UNION LOCAL 753, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND ITS AGENT THOMAS HAGGERTY, RESPONDENTS.



The opinion of the court was delivered by: Will, District Judge.

Respondents Milk Wagon Drivers Union Local 753 and Thomas Haggerty have moved to dismiss this action pursuant to Rules 37(b)(2) (iii) and 41(b), F.R. Civ.P., the former of which provides for dismissal of an action upon the failure of a party to answer any question propounded upon oral examination which that party has been ordered to answer and the latter of which authorizes dismissal for failure to comply with any order of court.

The deposition commenced as directed, but petitioner Madden, on the advice of counsel, refrained from answering many of the questions put to him. The respondents then moved for an order to compel the petitioner to answer the questions propounded to him. Such order was entered on March 25 as follows:

  "This matter coming on to be heard before the
  Honorable Hubert L. Will at 10:00 a.m. on March 25,
  1964 on Respondent's Motion to compel answers to
  questions on oral deposition of Ross M. Madden and
  all parties being represented by counsel and the
  Court being fully advised in the premises.
  "IT IS HEREBY ORDERED that Ross M. Madden,
  petitioner, be and he hereby is ordered to answer all
  certified questions and other questions which relate
  to the facts or other matters upon which Ross M.
  Madden, petitioner, predicated the filing of the
  Petition in the above-captioned matter, which relate
  to the facts or other matters pertaining to the
  allegations of the petition, and which relate to
  whose decision it was to file the Petition in the
  above-captioned matter and to issue complaint in
  these premises.
  "IT IS FURTHER ORDERED that Ross M. Madden,
  petitioner, is not compelled to answer any certified
  questions and other questions which may be propounded
  to him in the course of the oral deposition as to the
  internal administrative machinery of the National
  Labor Relations Board and is not compelled to answer
  any question as to the specific evidence which he
  intends to adduce in the course of the hearing on the
  Petition in the above-captioned matter.
  "Done and entered at Chicago, Illinois, this 25th day
  of March, 1964."

Pursuant to the order, petitioner Madden appeared for the resumption of his deposition on March 26. Many of the same questions relating to facts upon which the allegations of the petition are based were again asked of him. The petitioner was again instructed not to answer these questions and he adhered to the advice of his counsel. The petitioner repeatedly having refused to reply to questions which he was ordered to answer by the Court, the respondents now move to dismiss.*fn1

In effect, the Board challenges the order entered by this Court on March 25. It is the Board's position that since in the instant action it need merely allege and show that it has "reasonable cause" to believe an unfair labor practice has occurred, discovery procedures are not to be instituted. The Board contends that a § 10(l) action does not permit use of the discovery procedures provided for in the Federal Rules of Civil Procedure. As stated in the Board's answer to respondents' motion to dismiss:

  "Inquiry into the facts underlying the Regional
  Director's belief that respondents had violated the
  Act, is no more than inquiry which is calculated to
  determine whether or not an unfair labor practice has
  in fact been committed. Clearly on the basis of the
  cases relating to the court's function in 10(l)
  proceedings, this issue is not before the court, and
  discovery which is designed to ascertain such facts,
  should not be allowed, for the facts themselves are
  completely irrelevant and immaterial to the litigable
  issue before the court."

It is obvious that discovery relating to whether the Regional Director has "reasonable cause" to believe that an unfair labor practice has been committed is not the same as discovery as to the ultimate question of whether such a practice has in fact been committed. Some evidence indicating reasonable grounds for such a belief may also establish that an unfair labor practice has been committed. Other grounds for such a belief, on the other hand, may ultimately turn out not to be supported by credible evidence.

Unless the District Courts are merely to be rubber stamps, issuing injunctions under Sec. 10(l) whenever requested by a Regional Director to do so, evidence establishing the "reasonable cause" basis for the injunction will have to be presented at the hearing on the petition. And unless discovery is permitted in advance thereof, the respondent will face the possibilities of surprise and inadequate preparation which the Federal Rules were designed to eliminate.

There appears to be no reason why normal discovery limited to the issues raised by the petition for an injunction should not be required. No question of emergency or urgency is presented. Neither the Federal Rules nor any statute exclude Sec. 10(l) proceedings therefrom. Rule 1 of the Federal Rules determines the scope of their application and provides that the Rules "govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81." The proceeding here before the Court is not among those exempted by Rule 81.

The facts in the instant case are similar to those in Fusco for and on Behalf of N.L.R.B. v. Richard W. Kaase Baking Co., 205 F. Supp. 459 (N.D.Ohio 1962), wherein the respondent union sought, over the Board's objections, to take the deposition of the Regional Director of the Eighth Region, Richard Fusco, and of an attorney for that office. In holding that the union was ...


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