United States District Court, Northern District of Illinois, E.D
October 30, 1985
NATIONAL LABOR RELATIONS BOARD, PLAINTIFF,
BROWN TRANSPORT CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
National Labor Relations Board ("Board" or, when cited in case
names, "NLRB") has applied under National Labor Relations Act
("Act") § 11(2), 29 U.S.C. § 161(2),*fn1 for an order requiring
Brown Transport Corporation ("Brown") to comply with Board's
subpoena duces tecum (the "Subpoena"). For the reasons stated in
this memorandum opinion and order, Board's application is
Brown is a large motor carrier (with over 3,000 employees, and
with over 25 terminals located around the country) engaged
in the interstate (indeed nationwide) transportation of freight.
In July 1984 it established a new terminal in Bedford Park,
Illinois. It treated its existing collective bargaining agreement
with Drivers Mutual Association, Inc. ("Association") as covering
its Bedford Park employees as well.
Between November 23, 1984 and March 15, 1985 five unfair labor
practice charges were filed against Brown (Ex. 1*fn3). Two of
those charges were filed by individual employees Deborah King
("King") and Odell Neals ("Neals"), while competing union Local
710, International Brotherhood of Teamsters ("Local 710") filed
the remaining three charges.
On February 1, 1985 Board issued a complaint ("Complaint I,"
Ex. 2) consolidating King's charge with those brought by Local
710. Complaint I charged Brown had:
1. interrogated employees about their union
activities, in violation of Section 158(a)(1)
(Complaint I ¶ V);
2. threatened to discharge employees who supported
a union other than Association, in violation of
Section 158(a)(1) (Complaint I ¶ V);
3. threatened to close the Bedford Park terminal if
the employees there chose a union other than
Association, in violation of Section 158(a)(1)
(Complaint I ¶ V);
4. recognized Association as the bargaining
representative of its Bedford Park employees before
that union represented an uncoerced majority of those
employees, in violation of Sections 158(a)(1) and (2)
(Complaint I ¶ VI); and
5. discharged George Witzel ("Witzel") because he
supported Local 710, in violation of Section
158(a)(1) and (3) (Complaint I ¶ VII).*fn4
On April 25, 1985 Board issued a complaint (Complaint II, Ex.
3) based on Neals' charge. Complaint II contained allegations
against Brown similar to those included in Complaint I. On May 6,
1985 Board consolidated Complaints I and II (Ex. 4).
On June 28, 1985 Board issued the Subpoena (Ex. 7) to Brown,
directing production of certain documents at a Board hearing. On
July 3, 1985 Brown filed a petition to quash the Subpoena (Ex.
9). During the July 15, 1985 hearing, Administrative Law Judge
Alprin ("ALJ Alprin" or simply the "ALJ") granted the petition to
quash as to portions of the Subpoena but refused to revoke the
Subpoena entirely. Brown continues to refuse to comply with the
surviving portions of the Subpoena.
Brown counters Board's application for enforcement of the
Subpoena in three ways:
1. This Court lacks jurisdiction to enforce a
subpoena already limited by the ALJ.
2. Documents called for by the Subpoena are
irrelevant to Board's unfair labor practice case.
3. Because the Subpoena is insufficiently
particular, it is overly burdensome and hence
This opinion will consider each of those wholly unpersuasive
arguments in turn.
1. Jurisdiction To Enforce the Subpoena
Board's power to issue subpoenas derives from Section 161(1),
which also enables Board to revoke a subpoena after its
The Board, or its duly authorized agents or agencies,
shall at all reasonable times have access to, for the
purpose of examination, and the right to copy any
evidence of any person being investigated or
proceeded against that relates to any matter under
investigation or in question. The Board, or any
member thereof, shall upon application of any party
to such proceedings, forthwith issue to such party
subpenas requiring the attendance and testimony of
witnesses or the production of any evidence in such
proceeding or investigation requested in such
application. Within five days after the service of a
subpena on any person requiring the production of any
evidence in his possession or under his control, such
person may petition the Board to revoke, and the
Board shall revoke, such subpena if in its opinion
the evidence whose production is required does not
relate to any matter under investigation, or any
matter in question in such proceedings or if in its
opinion such subpena does not describe with
sufficient particularity the evidence whose
production is required. Any member of the Board, or
any agent or agency designated by the Board for such
purposes, may administer oaths and affirmations,
examine witnesses, and receive evidence. Such
attendance of witnesses and the production of such
evidence may be required from any place in the United
States or any Territory or possession thereof, at any
designated place of hearing.
Section 161(2) expressly confers jurisdiction on district courts
to enforce Board subpoenas:
In case of contumacy or refusal to obey a subpena
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, upon application by the Board shall have
jurisdiction to issue to such person an order
requiring such person to appear before the Board, its
member, agent, or agency, there to produce evidence
if so ordered, or there to give testimony touching
the matter under investigation or in question; and
any failure to obey such order of the court may be
punished by said court as a contempt thereof.
Brown asserts Board cannot limit the scope of an already-issued
subpoena but must — if the subpoena is flawed at all — revoke it
in its entirety. Brown claims the ALJ's rejection of parts of the
Subpoena operated to revoke the entire Subpoena. From that
premise Brown reasons this Court has no jurisdiction to consider
Board's application, because Brown has not refused to obey an
Brown's contention is so lacking in merit as to be frivolous.
Nothing in the statutory language even suggests, and not
surprisingly Brown's counsel has adduced no authority that even
hints, the partial invalidity of the Subpoena infects the
remainder. Any such conclusion would require Board to issue a new
subpoena every time an ALJ concludes any part of a subpoena is
invalid as to any document or documents, opening up endless
opportunities for a party to contest Board's subpoenas and thus
to delay Board proceedings. Such an exaltation of form over
substance would be both wasteful and — even more to the point —
pointless. Absent a clear statutory mandate to that effect (and
there is none), this Court will not embrace such a bizarre
concept of its jurisdiction.
This Court has an extremely narrow scope of review of Board
subpoenas in a
proceeding such as this. NLRB v. Williams, 396 F.2d 247, 249
(7th Cir. 1968) (citations omitted) teaches:
Duly issued subpoenas are to be enforced if the
agency is seeking information "not plainly
incompetent or irrelevant to any lawsuit purpose". .
. . And, the essential requirement for both the
issuance and enforcement of a National Labor
Relations Board subpoena is that the production of
the evidence or the giving of the testimony called
for by the subpoena must relate to a "matter under
investigation or question." The evidence or testimony
sought must touch upon the matter under investigation
or in question.
Brown urges it is called on to produce documents irrelevant to
Board's unfair labor practice case by Subpoena ¶ 7:
Any and all documents and records showing the names
of all employees of Brown Transport Corp., a
subsidiary of Brown Transport Co., Inc. who were
terminated during their probationary period during
the period from June 1, 1984 through March 1, 1985,
including all written or oral warnings, reprimands,
suspensions or terminations received by such employee
during that same period.
Contrary to Brown's assertion, those documents relate directly to
the allegations in Complaint I ¶ VII, which charges Brown
discharged Witzel because he supported Local 710. Brown counters
that charge by arguing Witzel was simply a probationary employee
(Ex. 10(x)). Brown's procedures for terminating probationary
employees such as Witzel thus become relevant to the inquiry
whether Brown in fact terminated Witzel pursuant to those
practices rather than for his activities on behalf of Local 710.
Brown's other disciplinary activities may be relevant to a
determination whether Witzel's termination was or was not for the
prohibited retaliatory reason.
Brown also argues its termination procedures at facilities
other than Bedford Park do not relate to the controversy
surrounding Witzel's discharge. But similarities and differences
between Brown's procedures at Bedford Park and at other terminals
might shed light on the bona fides of Brown's justification for
firing Witzel, especially because the records at Bedford Park — a
newly opened terminal — would almost certainly be too scanty to
substantiate Brown's procedures. ALJ Alprin noted (Ex. 10(h))
Brown had failed to offer any specific evidence showing why
personnel practices at different terminals did not relate to the
issue of Witzel's discharge. Brown's "bare assertion" of
irrelevancy will not defeat enforcement of Board's subpoena.
NLRB v. Dutch Boy, Inc., 606 F.2d 929, 932 (10th Cir.
Under the principles announced in Dow Chemical Co. v. Allen,
672 F.2d 1262, 1267 (7th Cir. 1982) (citations omitted, but
quoting FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C.Cir. 1977))
this Court may restrict the Subpoena:
where it would impose an unreasonable or undue burden
on the party from whom production is sought. . . .
The burdensomeness test finds its genesis in the
Fourth Amendment, which prescribes that disclosure
shall not be unreasonable. . . . "The burden of
showing that the request is unreasonable is on the
subpoenaed party . . . [and] is not easily met where
. . . the agency inquiry is pursuant to a lawful
purpose and the requested documents are relevant to
Brown argues it has met that burden of showing the subpoena is
unduly burdensome, advancing three arguments toward that end:
1. To require Brown to respond to the Subpoena as
modified by ALJ Alprin would put an unreasonable
burden on Brown to determine the extent of the ALJ's
revocation of the Subpoena.
2. Subpoena ¶¶ 3, 4, 5, 6, 11 and 13 fail to
describe the evidence sought with sufficient
3. Compliance with the Subpoena "would require the
production of thousands of documents and an army of
personnel to locate" those documents.
None of those reasons withstands close scrutiny.
First, even a quick perusal of the transcript of the July 15,
1985 hearing reveals ALJ Alprin plainly dealt with Brown's
petition to quash the Subpoena in this way:
1. He granted the motion to quash Subpoena ¶¶ 8, 9
and 10 (Ex. 10(i)), ¶¶ 12 and 14 (Ex. 10(j)) and ¶¶
15, 16 and 17 (Ex. 10(m)).
2. He granted the motion to quash Subpoena ¶ 3
except as that request relates to Association (Ex.
3. He ruled documents called for in Subpoena ¶¶ 4,
5 and 6 had to be produced only as to alleged
supervisory employees Pollard, Sailliez, Hausner and
Sobieski (Ex. 10(f)-(g)).
4. He limited Subpoena ¶ 11 to require production
of documents as to the effect of the opening of the
Bedford Park terminal "upon driver personnel" (Ex.
5. He granted the motion to quash Subpoena ¶ 13
except as it required production of documents
concerning staffing needs, job descriptions, transfer
of personnel and recognition of Association (Ex.
6. He denied Brown's motion to quash Subpoena ¶¶ 1
and 2 (Ex. 10(b)) and ¶ 7 (Ex. 10(h)).
Brown's counsel appeared at and participated in the hearing
before ALJ Alprin. Brown cannot plausibly claim ignorance of the
Subpoena requirements Board seeks to enforce.
Second, the language of the Subpoena is clearly not overly
broad, given the nature of the underlying unfair labor practice
charges. Board contends Brown's Bedford Park facility constitutes
a separate appropriate collective bargaining unit, so Brown
violated Sections 158(a)(1) and (2) by applying its existing
collective bargaining agreement with Association to its Bedford
Park employees. To determine whether Bedford Park constitutes an
appropriate bargaining unit, Board must look to (Towne Ford
Sales and Town Imports, 270 N.L.R.B. 311, 315 (1984)):
bargaining history; the functional integration of
operations; the differences in the types of work and
the skills of employees; the extent of centralization
of management and supervision, particularly in regard
to labor relations, hiring, discipline, and control
of day-to-day operations; and the extent of
interchange and contact between the groups of
Those inquiries necessarily involve an examination of Brown's
NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 133-14 (5th Cir.
1982) upheld a similar Board subpoena:
Although on a first reading some of the language in
the subpoenas does seem fairly broad, we think that
the problem lies not so much with "particularity" as
with the nature of the underlying claims. In order to
make these determinations, the Board must necessarily
undertake a fairly wide-ranging investigation into
the day-to-day affairs of the two companies.
Although Board's requests typically begin "Any and all documents
. . .," Board invariably continues (as it did here) by
specifically itemizing the types of documents it seeks. Our Court
of Appeals' rejection of a "particularity" claim in NLRB v.
Northern Trust Co., 148 F.2d 24
, 29 (7th Cir.),
cert. denied, 326 U.S. 731
, 66 S.Ct. 38
, 90 L.Ed. 435 (1945) is
equally applicable here:
The terms of the subpoenas were not unlimited, and
the records were particularized to such records as
would show certain specific information. Hence they
did not amount to a fishing expedition; rather, they
specified with as much precision as was fair and
feasible the records to be examined and the
information to be obtained from such records.
Brown's particularity argument (like its others) must fail.
Brown's final contention focuses on the claimed burden of
producing the subpoenaed documents. EEOC v. A.E. Staley
Manufacturing Co., 711 F.2d 780, 788 (7th Cir. 1983) (quotation
adapted to this case) states the applicable rule:
The test this Circuit applies to determine whether a
subpoena is too burdensome to be enforced is whether
". . . compliance would threaten the normal
operation of [Brown's] business."
On that score, at the hearing Brown's counsel simply stated
I am advised that it will take two people, two weeks
to review the files to come up with that, at a cost
to Brown in the area of $5,000.
Such an assertion is insufficient to establish burdensomeness.
NLRB v. United Aircraft Corp., 200 F. Supp. 48, 51 (D.Conn.
1961), aff'd mem., 300 F.2d 442
(2d Cir. 1962) rejected a
The mere size of Respondent's operation is no excuse
for its refusal to give information relative to
unfair labor practices. It is presumed, by the very
fact that Respondent has such a large number of
employees, that it is sufficiently equipped to handle
the records of its employees.
Brown offered no evidence showing compliance would threaten the
normal operation of its business. Nor did Brown offer any
affidavits to support its conclusory assertion to that effect.
Cf. EEOC v. Bay Shipbuilding Corp., 668 F.2d 304
, 313 (7th Cir.
In sum, Brown has not come close to sustaining its own burden
on the issue of burdensomeness. Its final position has also
Brown has resisted Board's reasonable subpoena requests without
reasonable justification. In the language of Section 161(2), it
has been "guilty of contumacy [as well as] refusal to obey. . .
." It is ordered to obey the Subpoena by:
1. appearing before ALJ Alprin at such time and
place as he may designate;
2. there producing the records described in the
Subpoena as modified by the ALJ's prior order; and
3. giving testimony and answering any and all
questions relevant and material to the matters under
investigation and in question in any of the Board
proceedings referred to in this opinion.