Beaird Company, Ltd.

National Labor Relations Board - Unpublished Board Decisions

Jul 21, 2006

15-CA-017366 (N.L.R.B. Jul. 21, 2006)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BEAIRD COMPANY, LTD.
and Case 15-CA-17366
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL WORKERS
LOCAL 2297, AFL-CIO
ORDER
This matter is before the Board pursuant to petitions
to revoke two investigatory subpoenas duces tecum (B-469642
and B-469643) and two investigatory subpoenas ad
testificandum (A-727601 and A-727602). The subpoenas were
served on newspaper journalists Edward J. Randolph and Mike
Hasten in connection with the Regional Office's
investigation of an unfair labor practice charge filed
against the Employer by the Union. The charge, as amended,
alleges, inter alia, that the Employer is a perfectly clear
successor within the meaning of NLRB v. Burns International
Security Services, Inc., 406 U.S. 272 (1972), and that it
violated Section 8(a)(5) and (1) of the Act by failing to
honor the Union's collective-bargaining agreement with
predecessor Beaird Industries, Inc.
The subpoenas seek documentary and testimonial
evidence to authenticate certain statements Randolph and
Hasten ascribed to the Employer's principal owner, Samuel
Eakin, in newspaper articles. In separate articles, the
Petitioners reported that Eakin announced that no employees
would lose their jobs as a result of the Employer's
purchase of the predecessor.
After receiving the subpoenas, Randolph and Hasten
each filed timely petitions to revoke. The Region filed
separate oppositions, and Hasten filed a reply to the
Region's opposition.
Both Petitioners claim that as journalists they are
protected from compelled disclosure of their news gathering
activities by virtue of a qualified privilege arising from
the First Amendment. The Petitioners submit that the
Region can overcome the claimed qualified privilege only by
showing that the subpoenaed documents and testimony are:
(1) highly relevant and material; (2) central to the
Region's investigation; and (3) not available from
alternative sources.'
See La. Rev. Stat. Ann. Secs. 45:1451-1459 (imposing
similar multi-factor balancing test). See also Miller v.
Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980),
modified on rehearing 628 F.2d 932 (5th Cir. 1980), cert.
denied 450 U.S. 1041 (1981)(concluding that First Amendment
gives rise to a qualified privilege shielding journalists
from compelled disclosure of confidential sources; but
privilege must yield upon a showing of relevancy,
compelling interest, and lack of alternative sources).
2
Randolph does not provide any supporting argument or
authority. However, Hasten provides an extensive analysis
of the claimed constitutional privilege, starting with the
Supreme Court's decision in Branzburg v. Hayes, 408 U.S.
665, 709-710 (1972). Hasten also points to Louisiana's
shield law, La. Rev. Stat. Ann. Secs. 45:1451-1459, and
Louisiana's constitution, as providing further support.
We deny the petitions to revoke. The subpoenas seek
information relevant to the unfair labor practice charge
under investigation, and the Petitioners have failed to
establish any basis for revoking the subpoenas. See
American Postal Workers Union, Local 64, 340 NLRB 912-913
(2003); Offshore Mariners United, 338 NLRB 745 (2002); NLRB
v. North Bay Plumbing, 102 F.3d 1005 (9th Cir. 1996); NLRB
v. Carolina Food Processors, Inc., 81 F.3d 507, 512 (4th
Cir. 1996). With respect to the Petitioners' privilege
contention, we find it unnecessary to decide whether the
claimed privilege applies because, even assuming that it
does, it appears that the Region can overcome the privilege
under the balancing test urged by the Petitioners.
As an initial matter, in balancing the Region's need
for the subpoenaed information against the Petitioners'
assertions that the subpoenas intrude upon protected First
Amendment rights, we find it significant that the
3
Petitioners do not allege that the information sought was
obtained through a promise of confidentiality or that
disclosure of the information would likely lead to the
discovery of confidential information or sources. In these
circumstances, the burden on the Petitioners of production
and the concomitant chill on the free flow of information
are relatively slight. Hence, a lesser showing of need and
materiality may be required to overcome the claimed
privilege .2
2 The Fifth Circuit, where this case arises, has recognized
a First Amendment-based qualified journalists' privilege,
but has held that confidentiality is a prerequisite for
application of the privilege in a criminal case and has
implied that the same is true in civil cases. See United
States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998)("We have
never recognized a privilege for reporters not to reveal
nonconfidential information. In fact, this court has
theorized that confidentiality is a prerequisite for the
news reporters' privilege.").
A number of other circuits, while explicitly extending
the privilege to include nonconfidential information, have
implied that a lesser showing of need and materiality may
be required to obtain such information. See, e.g., NLRB v.
Mortensen, 701 F.Supp. 244, 248-249 (D.D.C. 1988)(finding
qualified journalists' privilege applicable to Board
subpoenas, and acknowledging that a lesser showing of need
and materiality may be required where nonconfidential
information is sought), citing United States v.
Cuthbertson, 630 F.2d 139, 147 (3rd Cir. 1980), cert.
denied, 449 U.S. 1126 (1981)("Of course, the lack of a
confidential source may be an important element in
balancing the defendant's need for the material sought
against the interest of the journalists in preventing
production.") and Continental Cablevision Inc. v. Storer
Broadcasting Co., 583 F.Supp. 427, 434 (E.D. Mo. 1984)
(discovery of nonconfidential materials may not be entitled
to the same protection as discovery of the identity of
4
As indicated above, the subpoenas seek to authenticate
certain statements attributed to Eakin by the Petitioners
in separate newspaper articles. Specifically, Hasten
reported, "Eakin said none of the employees will lose their
jobs. He plans to expand and within a year have 300
employees." Randolph reported, "The new Beaird will keep
all of the former company's employees, Eakin said." The
Employer and Eakin deny the accuracy of the newspaper
accounts and maintain that Eakin only stated that he would
not comment on an unfinished business transaction.
In opposition to the Petitions to Revoke, the Region
contends that if, after further investigation, it appears
that Eakin made the alleged disputed statements without
contemporaneously indicating that any such future
employment would be contingent on changed terms and
conditions of employment, it may be appropriate to conclude
that the Employer is a "perfectly clear" successor under
Burns, supra, and thus was not free to unilaterally set
initial terms and conditions of employment. In support,
confidential informants). See also United States v.
Criden, 633 F.2d 346, 358 (3d Cir. 1980), cert. denied 449
U.S. 1113 (1991)("the defendants probably should be
required to prove less to obtain the reporter's version of
a conversation already voluntarily disclosed by the self-
confessed source than to obtain the identity of the source
itself.").
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the Region cites Spruce Up Corp., 209 NLRB 194 (1974),
enfd. mem. 529 F.2d 516 (1975). In Spruce Up, the Board
found that an employer may be a "perfectly clear" successor
under Burns if either of the following circumstances exist:
(1) the new employer has actively or, by tacit inference,
misled employees into believing they would be retained
without change in their wages, hours, or conditions of
employment; or (2) the new employer has failed to announce
its intent to establish a new set of conditions prior to
inviting former employees to accept employment.3 Although
we express no view at this stage regarding the merits of
the legal theory advanced by the Region, we find that the
subpoenaed documents and testimony arguably could be
relevant to determine, inter alia, whether the Employer
actively or tacitly misled its predecessor's unit employees
into believing that they would be retained without a change
in terms and conditions of employment. The subpoenaed
information therefore goes to the heart of the Region's
investigation.
It appears, moreover, that the information may not be
available from alternative nonmedia sources. Eakin
3 See Canteen Co., 317 NLRB 1052, 1054 (1995), enfd. 103
F.3d 1355 (7th Cir. 1997) (imposing bargaining obligation
under "perfectly clear" exception because of successor's
silence regarding new wage rates when initially announcing
intent to hire predecessor's employees).
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allegedly made the statements at issue in a hallway
following his participation in a March 5, 2004 meeting of
Louisiana's Economic Development Corporation. The Region
contends, and the Petitioners do not dispute, that the pool
of potential witnesses present when Eakin made the alleged
disputed statements thus far appears to be limited to
members of the press, such as Hasten and Randolph. Hasten
submits that state officials present at the March 5, 2004
meeting of the Economic Development Corporation and
officials of the predecessor constitute alternative
sources; however, he does not suggest that they were
present in the hallway when Eakin made the alleged disputed
statements. Rather, he contends that they may be able to
testify regarding similar statements made by Eakin during
the meeting of the Economic Development Corporation or
during negotiations for the sale of the company. As
indicated above, however, the Region's investigation is
focused on whether the Employer actively or tacitly misled
its predecessor's unit employees into believing they would
be retained without a change in terms and conditions of
employment. Evidence of statements by Eakin, if any, to
state officials or to officials of the predecessor
regarding the Employer's intent to retain its predecessor's
employees would not shed light on this issue, unless
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communicated to the employees. It is entirely speculative,
however, whether such statements were made, and there is no
suggestion that, even if made, the statements were
communicated to the employees. Hence, in contrast to our
dissenting colleague's position, it does not appear that
state officials in attendance at the meeting of the
Economic Development Corporation or officials of the
predecessor constitute alternative sources for the
information sought.
Accordingly, even assuming, without deciding, that the
information sought is covered by a qualified privilege,
after weighing the competing interests, we conclude that
the Region's need for the information outweighs any
possible intrusion on the news gathering process.
We condition our denial of the petitions to revoke the
testimonial subpoenas, however, upon the Region supplying
the subpoenaed witnesses with a general description of the
matters concerning which they will be expected to testify
and a copy of the unfair labor practice charge under
investigation.
Section 102.31(b) of the Board's Rules and Regulations
states, in pertinent part, that the Board shall revoke a
subpoena if in its opinion the subpoena "does not describe
with sufficient particularity the evidence whose production
8
is required." The testimonial subpoenas in this case
identify, by name and number, the unfair labor practice
case in which testimony is sought. Accordingly, under
current Board law, they are sufficiently particularized.
See Offshore Mariners, supra (subpoena ad testificandum was
sufficiently particularized where it identified unfair
labor practice cases by name and number); American Postal
Workers, supra.
However, a difference of opinion has arisen concerning
whether Offshore Mariners and American Postal Workers were
correctly decided. Specifically, there is disagreement
concerning (1) whether the particularity requirement of
Section 102.31(b) of the Board's Rules and Regulations
applies to a subpoena ad testificandum, and (2) if the
particularity requirement does apply, whether a subpoena ad
testificandum must describe the testimony sought, as well
as identify the relevant unfair labor practice case by name
and number. Without deciding these issues, we shall
require the Region to provide the subpoenaed witnesses with
a copy of the unfair labor practice charge under
investigation and a general description of the matters
concerning which they will be expected to testify. This
would include, but shall not be limited to, whether or not,
immediately following his appearance at the March 5, 2004
9
meeting of Louisiana's Economic Development Corporation,
Eakin commented concerning the future employment of
predecessor Beaird Industries' unit employees by the
Employer; the substance and context of any such comments;
and the identity of other possible witnesses. This Order
shall be nonprecedential.
Dated, Washington, D.C., July 21, 2006.
PETER C. SCHAUMBER, MEMBER
PETER N. KIRSANOW, MEMBER
MEMBER WALSH, dissenting.
Accepting the majority's framework for analyzing the
Petitioners' claim of a First Amendment privilege against
compelled disclosure of their news-gathering activities, I
would grant the petitions to revoke the General Counsel's
investigatory subpoenas. My disagreement with the majority
is limited to its finding that the General Counsel has
shown that the information he seeks is not available from
alternative non-media sources.
The facts are set forth in the majority opinion. In
brief, the Petitioners reported in separate newspaper
articles that the Employer's principal owner, Samuel Eakin,
10
made statements to the effect that no employees would lose
their jobs as a result of the Employer's purchase of the
predecessor company. Eakin allegedly made these statements
in a hallway following his participation in a March 5, 2004
meeting of the Board of Directors of the Louisiana Economic
Development Corporation (LEDC), which resulted in Eakin
obtaining the loan guarantee that he was seeking. The
General Counsel issued subpoenas to the Petitioners seeking
the production of "all notes and records, in whatever form"
that purport to record Eakin's March 5, 2004 statements.
The General Counsel is also seeking the Petitioners'
testimony concerning whether Eakin made the statements in
question, the substance and context of any such statements,
and the identity of other possible witnesses.'
In their submissions, the Petitioners have identified
a number of likely alternative sources for the information
that the General Counsel seeks, namely, the individuals
present at the March 5, 2004 LEDC meeting. According to
one of the newspaper articles, the mayor of Shreveport was
present at the LEDC meeting and "joined Eakin in requesting
Board approval of the loan." In addition, the Petitioners
state that, "[u]pon information and belief, delegates of
1 Petitioner Mike Hasten has submitted an affidavit that
affirms that his newspaper article accurately reported the
statements Eakin made.
11
the Greater Shreveport Economic Development Foundation were
also present." Further, the General Counsel concedes that
the meeting was open to the public. The Petitioners argue,
with considerable force, that the "issue of whether Mr.
Eakin's company intended to continue the employment of the
acquired company's employees was undoubtedly discussed in
the Board's deliberation of whether to approve the
requested 1.36 million dollar loan guarantee." In his
opposition, the General Counsel acknowledges an obligation
"'to exhaust . . . possible [alternative] sources'"
(quoting NLRB v. Mortensen, 701 F.Supp. 244, 249 (D.D.C.
1988)), but he does not allege that an effort has been made
to access these alternative sources, much less exhaust
them.
This is not an ordinary investigatory subpoena case.
The Board should proceed cautiously where, as here, it is
presented with a substantial constitutional claim. On this
record, the General Counsel has not made the showing
necessary to overcome the privilege that applies to
journalists under the majority's framework of analysis.
Dated, Washington, D.C., July 21, 2006.
DENNIS P. WALSH, MEMBER
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