Offshore Mariners United

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 745 (N.L.R.B. 2002)

OFFSHORE MARINERS UNITED 745
Offshore Mariners United and International Trans-
port Workers Federation and Trico Marine Op-
erators, Inc. Cases 15–CC–832 and 15–CC–833
November 22, 2002
ORDER DENYING PETITION TO REVOKE
SUBPOENA
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
This matter is before the Board on a Petition to Revoke
Subpoena Ad Testificandum A-450645 filed by David
Eckstein. The subpoena at issue was served on Eckstein
by the General Counsel on May 14, 2002, as part of the
Regional Office’s investigation of charges filed against
Offshore Mariners United (OMU) by Trico Marine Op-
erators, Inc. (Trico). The charges allege, inter alia, that
OMU violated Section 8(b)(4)(i) and (ii)(B) of the Act
by inducing or encouraging employees of Trico’s cus-
tomers to refuse to perform any work related to Trico,
and by threatening Trico’s customers, all with an object
of forcing or requiring the customers to cease doing
business with Trico.
The Region’s investigation disclosed that David Eck-
stein, a former field director for OMU, had written letters
during his tenure as the OMU field director to two of the
Employer’s largest customers concerning the Employer’s
alleged antiunion/antiworker activities, and sought to
meet with these customers and discuss those issues. In a
followup letter to one of the customers, Eckstein stated
that the OMU was contacting the customer in an attempt
to highlight the inherent problems of doing business with
such a company. The Region was unsuccessful in gain-
ing the voluntary cooperation of Eckstein, and therefore
issued the subpoena seeking his testimony concerning
the allegations in the charges.
After receiving the subpoena, Eckstein timely filed a
Petition to Revoke. The General Counsel filed a motion
in opposition, and a motion to expedite. Eckstein also
filed a request for hearing and oral argument.1 Each
party has also filed various responses to the filings of the
other party.
Eckstein’s arguments for revocation of the subpoena
are as follows: First, Eckstein argues that the service of
the subpoena was improper because it was sent via fac-
simile. Eckstein then asserts that the subpoena is overly
broad and vague because there is no indication what
form Eckstein’s testimony will take, what areas of in-
formation the witness will be expected to provide, or
whether such questions are within the purview of permis-
sible inquiry. Eckstein further argues that because he is
no longer employed by the OMU, he is not within the

1 This motion is denied.
Board’s scope of authority. In addition, Eckstein asserts
that the subpoena is unduly burdensome because he must
travel over a 1000 miles (from Chicago to New Orleans)
to comply with the subpoena, and that the Region can
obtain whatever information it seeks by other means.
Finally, Eckstein maintains that the General Counsel
does not have the authority to issue this precomplaint
subpoena, and that the General Counsel has sufficient
evidence to make a determination on whether to issue a
complaint without Eckstein’s testimony.
We deny the Petition to Revoke. Section 102.31(b) of
the Board’s Rules and Regulations provides that the
Board shall revoke a subpoena if the evidence sought
does not relate to any matter under investigation, if the
subpoena does not describe with sufficient particularity
the evidence whose production is required, or if for any
other reason sufficient in law the subpoena is otherwise
invalid. None of these criteria are met here.
Specifically, there is no merit in Eckstein’s contention
that service of the subpoena was improper. The General
Counsel has attached to his opposition documents show-
ing that on May 14, 2002, the subpoena was sent to Eck-
stein’s principal office or place of business by Federal
Express and that the subpoena was received the next day.
Eckstein does not challenge the authenticity of these
documents. The General Counsel also states that the
facsimile sent to Eckstein’s attorney was merely a cour-
tesy copy, and is not relied on to establish service. The
General Counsel’s method of service is authorized under
Section 102.113(c) of the Board’s Rules, which states
that “[s]ubpoenas shall be served upon the recipient . . .
by leaving a copy thereof at the principal office or place
of business of the person required to be served.”
Nor has Eckstein provided any other basis for revoking
the subpoena. The subpoena is not overly broad or
vague, because the subpoena ad testificandum set forth
the specific scope of the inquiry by notifying Eckstein
that he is required to testify in the matter of Offshore
Mariners United, Cases 15–CC–832 and 15–CC–833. In
addition, there is no merit in Eckstein’s contention that
because he is no longer employed by OMU, it is outside
the scope of the Board’s authority to subpoena him to
testify in this matter.2 Further, any burden imposed on
Eckstein by the requirement that he travel to New Or-
leans would appear to be outweighed by the fact that
both Eckstein’s attorney and the Board agent assigned
the case have offices in that area. Thus, we find that
2 See NLRB v. The Bakersfield Californian, 128 F.3d 1339, 1342
(9th Cir. 1997) (NLRB has authority to issue investigatory subpoenas
to nonparties in unfair labor practice proceedings). See also NLRB v.
Lewis, 310 F.2d 364, 366 (7th Cir. 1962); Link v. NLRB, 330 F.2d 437,
439 (4th Cir. 1964).
338 NLRB No. 88
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746
compliance with the subpoena would not be unduly bur-
densome.3 In addition, there is no merit to Eckstein’s
contention that the Board does not have the authority to
issue a precomplaint subpoena. It is well established
that, under Section 11(1) of the Act, the “Board may is-
sue subpoenas requiring both the production of evidence
and testimony during the investigatory stages of an unfair
labor practice proceeding.”4 Moreover, it is clear that
“the information sought appears relevant to the charges
under investigation.”5 Accordingly, after carefully con-
sidering this matter, we deny the Petition to Revoke.
Advancing two arguments not made by Eckstein, our
dissenting colleague would grant the petition to revoke.
Although it is unnecessary for us to address the dissent’s
contentions because they were not raised by Eckstein, we
find, in any event, that they lack merit.
The dissent’s initial argument is that the petition to re-
voke should be granted because the Regional Director
issued the subpoena without prior clearance from the
Division of Operations Management, as allegedly re-
quired by Section 11770.2 of the NLRB Casehandling
Manual, Part I, Unfair Labor Practice Proceedings. This
argument is flawed for three reasons.
First, the Casehandling Manual was prepared by the
General Counsel pursuant to his authority under Section
3(d) of the Act. The Casehandling Manual itself states
that it is intended “only to provide . . . guidance for the
Agency’s staff” and is “not a form of authority binding
on the General Counsel or on the Board.”6 For this rea-
son, the dissent errs in relying on the Casehandling Man-
ual as a basis for granting the petition to revoke the sub-
poena.
Second, on May 1, 2000, then-General Counsel Leo-
nard R. Page issued a memorandum substantially
increasing the authority of the Regional Offices to issue
investigative subpoenas without first obtaining approval
from headquarters.7 The wording of this memorandum is
broad enough to authorize the issuance of the subpoena
in issue here.8 Thus, this memorandum effectively rebuts
the dissent’s contention that the subpoena was not validly
issued.

3 Of course, the parties remain free to reach an accommodation on an
alternative location for the taking of Eckstein’s testimony.
4 NLRB v. North Bay Plumbing, 102 F.3d 1005, 1008 (9th Cir.
1996).
5 NLRB v. Playskool, Inc., 431 F.2d 518, 520 (7th Cir. 1970).
6 See the section entitled, “Purpose of Manual.”
7 See Memorandum GC 00-02, “Investigative Subpoenas.”
8 The memorandum states, inter alia, that “[Regional] Directors and
their designees are authorized to issue investigative subpoenas ad testi-
ficandum and duces tecum to charged parties and third-party witnesses
whenever the evidence sought would materially aid in the determina-
tion of whether a charge allegation has merit and whenever such evi-
dence cannot be obtained by reasonable voluntary means.”
Third, on October 3, 2002, the present General Coun-
sel, Arthur F. Rosenfeld, personally submitted a “Motion
Requesting Expedited Ruling on Validity of Investigative
Subpoena In Statutory Priority Cases.” In so doing, the
General Counsel reaffirmed and ratified the Regional
Director’s issuance of the subpoena in issue. This is yet
another reason for rejecting the dissent’s claim that the
Regional Director exceeded his authority.
The dissent’s remaining argument is that the Board’s
policy against pretrial discovery is both unfair and ineffi-
cient. In his view, the Board should provide “full pre-
trial discovery to all parties involved in Board proceed-
ings.” Because the Board’s rules currently do not pro-
vide discovery rights to all parties, the dissent contends
that the petition to revoke the subpoena should be
granted. We respectfully decline our dissenting col-
league’s invitation to profoundly alter Board policy in
this area.
“Pretrial discovery in Board proceedings is neither
constitutionally nor statutorily required.” NLRB v.
Washington Heights, 897 F.2d 1238, 1245 (2d Cir.
1990). Historically, the Board has prohibited disclosure
of documents in the possession of the General Counsel,
whether in response to a subpoena or otherwise, without
the General Counsel’s written consent.9 The Board’s
policy is well established and has been sustained by the
circuit courts.10 Further, Congress has long recognized
the Board’s policy and never changed it.11
The Board’s policy is based not merely on the “cost
and inconvenience full discovery would impose on ad-
ministrative proceedings.”12 More fundamentally, as
discussed in Robbins Tire, supra, the Board’s policy is
grounded in “the peculiar character of labor litigation,”
9 See Sec. 102.118(a) of the Board’s Rules and Regulations. A lim-
ited exception to this rule is set forth in Sec. 102.118(b)(1), which
requires the production of statements by the General Counsel or Charg-
ing Party witnesses after they have testified.
10 See cases cited in NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 237 fn. 16 (1978).
11 See Robbins Tire, supra, 437 U.S. at 238–239 (stating that in en-
acting the investigatory records exemption to the Freedom of Informa-
tion Act in 1966, Congress “was particularly concerned that premature
production of witnesses’ statements in NLRB proceedings would ad-
versely affect that agency’s ability to prosecute violations of the
NLRA, and . . . the legislative history of the 1974 amendments affords
no basis for concluding that Congress at that time intended to create
any radical departure from prior, court-approved Board practice.”).
12 P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 386 (1st Cir. 1978).
See Emhart Industries v. NLRB, 907 F.2d 372, 378 (2d Cir. 1990)
(“Pre-trial discovery, perhaps the primary source of delay in civil ac-
tions, is almost never allowed by the Board.”); David R. Webb Co., 311
NLRB 1135, 1136 (1993) (“Even granting that some advantages may
be gained from prehearing discovery, the fact remains that it can be
productive of delay, offering, as it does, abundant opportunities for
collateral disputes.”).
OFFSHORE MARINERS UNITED 747
where “witnesses are especially likely to be inhibited by
fear of the employer’s or—in some cases—the union’s
capacity for reprisal and harassment.”13 As the Supreme
Court recognized, “both employees and nonemployees
may be reluctant to give statements to the NLRB investi-
gators at all, absent assurances that unless called to tes-
tify in a hearing, their statements will be exempt from
disclosure until the unfair labor practice charge has been
adjudicated.”14 The Court specifically cautioned that the
possibility that a “change in the Board’s prehearing dis-
covery rules will have a chilling effect on the Board’s
sources cannot be ignored.”15 We therefore adhere to the
Board’s longstanding policy and reaffirm it.16
Accordingly, having rejected the various arguments
presented both by Eckstein and our dissenting colleague,
we deny the petition to revoke the General Counsel’s
investigatory subpoena.

MEMBER COWEN, dissenting.
Contrary to my colleagues, who deny David Eckstein’s
Petition to Revoke Subpoena No. A-450645, I would
grant the petition because the prehearing discovery
sought by the General Counsel is not provided for under
the Board’s rules. I also believe that it is important for
the Board to reexamine the appropriateness of the
Board’s rules governing prehearing discovery.
The Federal Rules of Civil Procedure generally do not
apply to administrative proceedings, Silverman v. Com-
modity Futures Trading Commission, 549 F.2d 28, 33
(7th Cir. 1977), and the Board has not adopted the use of
those rules for prehearing discovery. NLRB Casehan-
dling Manual, Part One, Unfair Labor Practice Proceed-
ings, Section 10292.4. The NLRB Casehandling Manual
specifies just four situations in which the Regional Direc-
tor may issue an investigatory subpoena without clear-
ance by the Division of Operations Management. Id. at
Sec. 11770.2. These are situations where (1) a potential
witness is willing to testify or produce records only if
subpoenaed; (2) the subpoena seeks information from a
party to obtain “commerce” information for determina-
tion of Board jurisdiction over that party; (3) the sub-

1965), the
Fourth Circuit stated:
13 437 U.S. at 240 (quoting Roger J. Au & Son v. NLRB, 538 F.2d
80, 83 (3d Cir. 1976)).
14 Id.
15 Id. at 241.
16 In reaffirming the Board’s longstanding policy, Member Bartlett
recognizes that the Board’s policy provides the General Counsel with
an advantage, and creates the potential for abuse of the subpoena power
during the pretrial investigation. However, he believes that the answer
to these concerns is for the Board to do what we have done here: scruti-
nize the General Counsel’s investigative subpoena, in light of the
objections raised in the petition to revoke, to ensure that the subpoena
conforms to the provisions of Sec. 11 of the Act and Sec. 102.31 of the
Board’s Rules and Regulations.
poena seeks procurement of an eligibility list for an im-
pending election, or (4) the subpoena seeks the payroll
list of union employees to determine the majority status
of a union in an unfair labor practice case.
In this case, the General Counsel has directed that
Eckstein appear “for the purpose of giving testimony
before an agent of the National Labor Relations Board”
in Offshore Mariners United (Trico Marine Operators,
Inc.), Cases 15–CC–832 and 15–CC–833. This informa-
tion request falls outside the four areas of inquiry al-
lowed in Section 11770.2 of the NLRB Casehandling
Manual.1 Therefore, I would find that the petition to
revoke the General Counsel’s investigatory subpoena
should be granted.
Although the General Counsel may compel the
production of certain limited types of information prior
to hearing, all other parties appearing before the Board
do not have the ability to seek pretrial discovery. The
Board Rules prohibit any employee of the Board,
regional director or administrative law judge from
producing “any files, documents, reports, memoranda, or
records of the Board or of the General Counsel, whether
in response to a subpoena duces tecum or otherwise”
except as might be required under the Freedom of
Information Act or upon the written consent of the
Board, the Chairman of the Board or the General
Counsel. 29 CFR § 102.118(a)(1) (2001). The Board’s
failure to provide discovery rights for all parties has
resulted in what has been described as “trial by ambush”
for parties accused of violating the Act. New England
Medical Center Hospital v. NLRB, 548 F.2d 377, 387
(1st Cir. 1977); Capital Cities Communications, Inc. v.
NLRB, 409 F.Supp. 971, 977 (N.D.Cal.1976). Courts
have criticized the unfairness of the Board’s restrictive
discovery rules. NLRB v. Hareman Garment Corp., 557
F.2d 559, 563 (6th Cir. 1977); Pepsi-Cola Bottling Co. v.
NLRB, 92 LRRM 3527 (D. Kan. 1976).2 In NLRB v.
Southern Materials Co., 345 F.2d 240 (4th Cir.
1 Specifically, the investigatory subpoena is not covered by the first
area of inquiry because Eckstein has not expressed a willingness to
testify or produce records if subpoenaed.
2 The General Counsel has an inherent advantage in discovery be-
cause the Board has afforded the General Counsel certain discovery
rights that are not afforded to any other parties, and because respon-
dents are naturally inclined to cooperate with the General Counsel
during the investigative stage based on their interest in avoiding litiga-
tion. As long as this imbalance in discovery exists, the Board should
narrowly circumscribe the discovery available to the General Counsel.
Providing discovery to the General Counsel beyond the areas outlined
in Sec. 11770.2 of the NLRB Casehandling Manual, above, while deny-
ing discovery to companies or unions accused of violating the Act,
would only enhance the “trial by ambush” that unfairly prejudices the
parties appearing before the Board. The Board should therefore restrict
discovery to those areas delineated in Sec. 11770.2 of the NLRB Case-
handling Manual.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748
. . . the Board, acting in a quasi judicial capacity as it
does, should freely permit discovery procedure in order
that the rights of all parties may be properly protected.

Id. at 244. See also NLRB v. Miami Coca-Cola Bottling
Co., 403 F.2d 994, 996 (5th Cir. 1968); NLRB v. Rex Dis-
posables, 494 F.2d 588, 592 (5th Cir. 1974). It is incumbent
upon the Board to address the unfairness and inefficiency
embodied in its current discovery procedures.3
The primary purpose of prehearing discovery is to en-
sure that a party has “an adequate opportunity to prepare
or develop his defense to the charges leveled against
him.” Conway v. Asbestos Workers, 209 F.Supp.2d 731
(N.D. Ohio 2002), citing Yashon v. Hunt, 825 F.2d 1016,
1026 (6th Cir. 1987). The Board’s current discovery
procedures do not allow a party charged with an unfair
labor practice to obtain information it may need to pre-
pare or develop its defense. Pepsi-Cola Bottling Co.,
supra (“Counsel for parties charged with unfair labor

3 Although there is no constitutional or statutory requirement that
discovery be available in administrative proceedings, the administrative
hearing procedure must still comply with the fundamentals of due
process. See Silverman, supra; NLRB v. Carolina Food Processors,
Inc., 81 F.3d 507, 512–513 (4th Cir. 1996); Swift & Co. v. U.S., 308
F.2d 849, 851 (7th Cir. 1962).
practices must, of necessity, engage in considerable
guesswork.”). Discovery for all parties in Board pro-
ceedings is preferable because it allows the parties to
assess their positions more thoroughly and determine
whether to seek a resolution or proceed forward through
the administrative hearing process. With full pretrial
discovery available to all parties, parties would be better
able to narrow and resolve issues and thereby expedite
hearings or even avoid hearings altogether. I therefore
encourage my colleagues to reexamine the appropriate-
ness of the current Board discovery rules, and recom-
mend that they consider providing full pretrial discovery
to all parties involved in Board proceedings. Because
there currently is no right to pretrial discovery, I would
grant Eckstein’s petition to revoke the General Counsel’s
investigatory subpoena.4
4 I agree with my colleagues that the information which the General
Counsel seeks appears relevant to the charges under investigation, but
this alone does not entitle the General Counsel to compel production of
the information prior to hearing under the extant Board discovery rules.
This situation does, however, provide a further example of why the
Board’s discovery rules should be amended to allow for full pretrial
discovery for all parties.