Projections, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 2000

331 N.L.R.B. 1067 (N.L.R.B. 2000)

PROJECTIONS, INC. 1067
Projections, Inc. and Local 1298, Communications
Workers of America, AFL–CIO. Case 34–CA–
9217
August 23, 2000
ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On May 30, 2000, the Regional Director of Region 34
issued a subpoena duces tecum to Projections, Inc., the
Charged Party in the captioned case, as part of its inves-
tigation of the charge filed by Local 1298, Communica-
tions Workers of America, AFL–CIO against TCI in
Case 34–CA–9147. In the instant charge, the Union
claims that the Charged Party violated Section 8(a)(1) by
certain statements in its video, “Little Card, Big Trou-
ble,” which it sold to TCI Cablevision of south central
Connecticut and which was shown to TCI’s employees
during the Union’s organizational campaign at TCI. The
subpoena seeks documents relating to the purchase of the
video from the Charged Party by TCI, which the General
Counsel contends are relevant to establishing an agency
relationship between TCI and the Charged Party.
The Charged Party’s petition to revoke subpoena duces
tecum is denied as the material sought is relevant to the
General Counsel’s investigation of the liability of the
Charged Party for the conduct alleged in the unfair labor
practice charge.
Contrary to the position of our colleague, we do not
believe that compliance with this subpoena would impli-
cate the Charged Party’s rights under Section 8(c) of the
Act or the free speech provisions of the Constitution.
Certainly, the Charged Party has not so contended in its
petition to revoke subpoena duces tecum. In any event,
we note that the subpoena inquiry is a narrow one, lim-
ited to whether the Charged Party and TCI have an
agency relationship. The inquiry does not deal with the
content of the films.
We do not agree with our dissenting colleague that
Section 8(c) is an impediment to enforcement of the sub-
poena. Section 8(c) precludes the use of certain state-
ments as evidence of an unfair labor practice. We are
obviously not now passing on whether the statements in
the video are unfair labor practices.
We also disagree with our colleague that the First
Amendment precludes enforcement of the subpoena. As
noted, Projections does not even raise this argument.
Further, the subpoenaed evidence is simply designed to
show whether Projection is responsible for any video
statement that may be found unlawful. To be sure, in
determining whether any statements are lawful, Section
8(c) and the First Amendment can be considered. But,
the issue under investigation now is simply one of re-
sponsibility, i.e., whether Projections is responsible for
any statement that may be found unlawful under Section
8(a)(1).

MEMBER BRAME, dissenting.
Contrary to the majority, I would grant Projections’
petition to revoke the General Counsel’s investigative
subpoena. The subpoena seeks information concerning
Projections’ sale of a campaign video to TCI Cablevision
for its use during a union organizing campaign involving
TCI’s employees. The majority has accepted the General
Counsel’s reasoning that the subpoena is proper because
it seeks material relevant to the General Counsel’s inves-
tigation. I disagree.
Section 8(c) of the Act provides that, “[t]he expressing
of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair la-
bor practice under any of the provisions of this Act, if
such expression contains no threat of reprisal or force or
promise of benefit.” 29 U.S.C. §158(c). The courts have
recognized that Section 8(c) of the Act was designed to
protect employer free speech, and thus implements rights
guaranteed by the First Amendment. Holo-Krome v.
NLRB, 907 F.2d 1343, 1345 (2d Cir. 1990).
This subpoena probes into activity which potentially
falls within the ambit of Section 8(c). In the First
Amendment context, the Supreme Court has recognized
that subpoenas which probe into protected expression
may potentially chill the exercise of First Amendment
rights. See NAACP v. Alabama, 357 U.S. 449 (1958).
Accordingly, the Supreme Court has required the party
seeking to enforce such a subpoena to show that its le-
gitimate need for the subpoenaed information outweighs
the potential intrusion on the rights of the subpoenaed
party. Id. at 466. I would apply a similar standard to
cases which, like this one, implicate 8(c) rights.
This approach is consistent with established principles
governing the investigation of unfair labor practice cases.
Thus, it is well settled that the Charging Party has the
responsibility to proffer evidence in support of its charge.
Case Handling Manual (Part One) Unfair Labor Practice
Proceedings Section 10056.1. “Only when the investiga-
tion of the charging parties’ evidence and pertinent leads
point to a prima facie case should the charged party be
contacted to provide evidence.” Case Handling Manual
(Part One) Unfair Labor Practice Proceedings Section
10056.5 (emphasis in original). See also NLRB v.
Pinkerton’s, 621 F.2d 1322, 1326 (1980) (recognizing
that the Board properly declined to issue a subpoena
where there was no demonstration of the relevance of the
requested material).
By requiring the General Counsel to present some jus-
tification for his inquiry into areas which implicate 8(c)
activity, the Board can prevent a chilling effect on em-
ployer freedom of speech and association. Because the
General Counsel has not made this showing, I would
grant the petition to revoke.

331 NLRB No. 135