Smitty's Supermarkets

National Labor Relations Board - Board Decisions

Mar 11, 1993

310 N.L.R.B. 1377 (N.L.R.B. 1993)

1377
310 NLRB No. 226
SMITTY’S SUPERMARKETS
* This decision was inadvertently issued without a volume and slip
opinion number.
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 We agree with the judge’s ruling revoking portions of the Re-
spondent’s subpoena duces tecum, and with the judge’s limitation on
the scope of the subpoena, as set forth in fn. 3 of the judge’s deci-
sion.
3 The record shows that the picket signs bore the message: ‘‘Amer-
ica works best when we say . . . Union Yes. Please don’t shop
Smitty’s. United Food and Commercial Workers, AFL–CIO.’’ The
handbills distributed by the employees stated in part: ‘‘Notice to the
Public. This store is being informationally picketed by members of
the United Food and Commercial Workers Union, Local 322. We
are doing this so that you as a ‘customer’ will know that this com-
pany does not provide AFL–CIO union negotiated wages, hours, and
working conditions for their employees. . . . So, the Members of
our Union Would Greatly Appreciate Your Support—and we ask—
Please Don’t Shop at Smitty’s!’’
4 Sec. 8(b)(7)(C) states that it is an unfair labor practice for a
union
to picket or cause to be picketed . . . any employer where an
object thereof is forcing or requiring an employer to recognize
or bargain with a labor organization as the representative of his
employees . . . (C) where such picketing has been conducted
without a petition under section 9(c) being filed within a reason-
able period of time . . . Provided further, That nothing in this
subparagraph (C) shall be construed to prohibit any picketing or
other publicity for the purpose of truthfully advising the public
(including consumers) that an employer does not employ mem-
bers of, or have a contract with, a labor organization, unless an
effect of such picketing is to induce any individual employed by
any other person in the course of his employment, not to pick
up, deliver, or transport any goods or not to perform any serv-
ices.
Smitty’s Supermarkets, Inc. and United Food and
Commercial Workers Union Local 322. Case
17–CA–15664
March 11, 1993*
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 5, 1992, Administrative Law Judge Rich-
ard J. Boyce issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed an opposing brief, cross-excep-
tions, and a supporting brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to remand the case to the judge for further devel-
opment of the record, findings of fact, and, if appro-
priate, new conclusions of law and recommendations.2
The judge recommended dismissal of the complaint
based on the Charging Party Union’s refusal to comply
with certain portions of a subpoena duces tecum served
on it by the Respondent. The General Counsel argues
in his exceptions that the judge should have granted
the Union’s petition to revoke the disputed portions of
the subpoena, in accordance with Section 11(1) of the
Act, because the documents sought do not relate to
‘‘any matter in question’’ in the present proceeding.
For the reasons discussed below, we find merit in the
General Counsel’s position.
The complaint here alleges that the Respondent vio-
lated Section 8(a)(1) by interfering with, restraining,
and coercing employees while they were engaging in
picketing and handbilling at the Respondent’s Spring-
field stores.3 The Respondent contends that the picket-
ing was prohibited by Section 8(b)(7)(C) and therefore
its actions were not unlawful.4 In furtherance of its de-
fense, the Respondent subpoenaed numerous categories
of documents from the Union. In response to a union
petition to revoke the subpoena in toto, the judge re-
voked portions of the subpoena. The Union produced
the documents sought in the remaining portions of the
subpoena, with the exception of the following tems:
Minutes of all meetings of Local 322, wherein
you have discussed organizing of [Respondent’s]
stores . . . including minutes of general member-
ship meetings, executive board meetings or other
minutes where organizing activities of [Respond-
ent’s] stores were discussed. [Par. 1.]
Any reports that have been sent by Local 322
to any International official concerning the
handbilling or picketing or other conduct or ac-
tivities at the Smitty’s in Springfield. [Par. 7.]
Minutes of all meetings of any organizing com-
mittee or subcommittee of Local 322. [Par. 8.]
The Respondent sought these materials in order to
demonstrate that the Union’s picketing had a recog-
nitional object and therefore fell within the prohibition
of Section 8(b)(7)(C) because a timely representation
petition had not been filed. The General Counsel, how-
ever, contended that the documents are irrelevant be-
cause the Union was engaged in informational pick-
eting and handbilling protected by the second proviso
of Section 8(b)(7)(C), and such activity, in accordance
with the Board’s decision in Hotel & Restaurant Em-
ployees (Crown Cafeteria), 135 NLRB 1183 (1962),
enfd. 327 F.2d 351 (9th Cir. 1964) (Crown Cafeteria
II), retains its protected status regardless of the exist-
ence of a recognitional object.
The judge found that the materials sought by the Re-
spondent could relate to the object of the Union’s pick-
eting. The judge also rejected the General Counsel’s
argument that the presence of a recognitional object
was irrelevant under the second proviso, finding that
this position assumes without supporting evidence that
the Union’s activity here conformed with the require-
ments of that proviso. The judge concluded that in
1378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Smitty’s Super Market, 284 NLRB 1188 (1987). We do not pass
on whether the Board’s conclusions on other issues in the earlier
case are consistent with the Supreme Court’s decision in Lechmere,
Inc. v. NLRB, 112 S.Ct. 841 (1992).
6 Id. at 1198 fn. 31 and cases there cited. See also D’Alessandro’s,
Inc., 292 NLRB 81, 83 (1988), in which the Board found that to
the extent that ‘‘an ultimate recognitional object’’ could be inferred,
despite the union’s disclaimer of interest, the informational picketing
conducted by the union was still protected by the second proviso.
7 In this regard, we note that the evidence regarding events con-
temporaneous with and at the same location as the picketing should
be considered.
8 Because we find that this case involves material issues of fact,
we deny the Respondent’s Motion for Summary Judgment.
view of the Union’s refusal to comply with a subpoena
for documents central to the Respondent’s defense, dis-
missal of the complaint is appropriate.
We agree with the General Counsel that documents
pertaining to a recognitional object on the part of the
Union are not relevant to the issues presented in this
proceeding. In Crown Cafeteria II the Board held that
picketing that would otherwise be prohibited by Sec-
tion 8(b)(7)(C) is protected by the second proviso if it
satisfies two specific statutory conditions: (1) it must
be ‘‘for the purpose of truthfully advising the public
(including consumers) that the employer does not em-
ploy members of, or have a contract with, a labor or-
ganization,’’ and (2) it must not have an effect ‘‘to in-
duce any individual employed by any other person in
the course of his employment, not to pick up, deliver,
or transport any goods or not to perform any serv-
ices.’’ In Crown Cafeteria II, the Board expressly re-
jected the view that the proviso protects picketing only
where there is no independent evidence of a recog-
nitional or organizational object or other activity re-
lated to those goals. To the contrary, the Board found
that such goals may be present and are even implicit
in the nature of the messages that may be conveyed to
the public under the language of the proviso. In an ear-
lier case involving the Respondent, where the Board
found that the Respondent did not unlawfully deny
nonemployee organizers access to its premises, the
Board also considered whether picketing by the Union
was protected by the second proviso.5 The picket signs
in that case urged the public not to shop at the Re-
spondent’s store and stated that the Respondent did not
have a contract with the Union. The Board adopted the
judge’s findinq that the picketing was not prohiited by
Section 8(b)(7)(C). Contrary to the Respondent’s argu-
ments, the judge found that the picketing was protected
because the conditions of the second proviso were met,
and noted that the Board in Crown Cafeteria II viewed
informational picketing as presupposing a recognitional
or organizational object.6
We thus find that the judge in the instant case erred
in requiring the Union to produce the internal docu-
ment sought by the Respondent and in dismissing the
complaint based on the Union’s noncompliance. Con-
trary to the judge’s finding, the evidence of a recog-
nitional object sought through the production of these
documents is not relevant to the Respondent’s defense
that the picketing was unprotected. As the above dis-
cussion indicates, the Union’s picketing may be pro-
tected despite such an object. In fact, in his brief the
General Counsel concedes as a matter of law the exist-
ence of a recognitional object here. Therefore, the evi-
dence sought does not pertain to an issue in dispute in
the present case. Rather, the relevant inquiry must be
whether the picketing and handbilling satisfied the two
statutory conditions noted above for protection under
the second proviso.7
Accordingly, we grant the Union’s petition to revoke
the disputed paragraphs of the subpoena, reverse the
judge’s dismissal of the complaint based on the failure
to comply with the subpoena, and remand this pro-
ceeding to the judge for the purpose of reopening the
record to receive evidence, make findings of fact,
credibility resolutions, and, if appropriate, revised con-
clusions of law and recommendations concerning
whether the picketing and handbilling by the Union
were protected under the second proviso of Section
8(b)(7)(C), and such further proceedings as he deems
appropriate in order to resolve the remaining issues
raised by the complaint allegations.8
ORDER
It is ordered that the above-captioned proceeding be
remanded to Administrative Law Judge Richard J.
Boyce for the purpose of reopening the record to re-
ceive evidence, make findings of fact, credibility reso-
lutions, and, if appropriate, revised conclusions of law
and recommendations concerning whether the pick-
eting and handbilling by the Union were protected
under the second proviso of Section 8(b)(7)(C) and
such further proceedings as he deems appropriate in
order to resolve the remaining issues raised by the
complaint allegations.
1379SMITTY’S SUPERMARKETS
1 The charge was filed on June 14, 1991.
2 I refer to the General Counsel’s representative before me as the
General Counsel.
3 With regard to these demands, the subpoena as originally con-
stituted reached back well beyond July 1, 1990, and did not restrict
itself to matters specifically involving Respondent. In denying the
petition to revoke, I imposed those limitations, which Respondent
then incorporated in the subpoena by amendment on the record.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision set-
ting forth credibility resolutions, findings of fact, con-
clusions of law, and recommendations, including a rec-
ommended order, if appropriate. Copies of the supple-
mental decision shall be served on all the parties after
which the provisions of Section 102.46 of the Board’s
Rules and Regulations, shall be applicable.
Naomi Stuart, Esq., for the General Counsel.
Donald W. Jones and Nancy E. Siuda, Esqs., of Springfield,
Missouri, for the Respondent.
Benjamin Francka, Esq. and Glen Conyers, Business Agent,
of Springfield, Missouri, for the Charging Party.
DECISION
I. PROCEDURAL HISTORY
RICHARD J. BOYCE, Administrative Law Judge. I opened
and adjourned a hearing in this matter in Springfield, Mis-
souri, on November 20, 1991.
The complaint, based on a charge filed by United Food
and Commercial Workers Union Local 322 (the Union),
issued on August 12, 1991.1 It alleges that the Union, using
statutory employees, has engaged in ‘‘picketing and
handbilling’’ since August 1990 ‘‘to advise the public that
employees of’’ Smitty’s Supermarkets, Inc. (the Respondent)
in its three Springfield stores ‘‘are not represented by a labor
organization’’; and that Respondent violated Section 8(a)(1)
of the National Labor Relations Act (the Act) on six occa-
sions in February and June 1991 by interfering with, restrain-
ing, and coercing the employees while engaged in those ac-
tivities.
Respondent alleges in its answer, among other things, that
the picketing and handbilling ‘‘is not protected because . . .
such conduct is banned by Section 8(b)(7)(C) of the Act.’’
In anticipation of the hearing, Respondent served a sub-
poena duces tecum on the Union demanding production of
some 31 categories of written materials. The Union then filed
a petition to revoke in toto. I ruled on that petition at the
outset of the hearing, granting in part and denying in part.
The Union complied with certain of the surviving elements
of the subpoena, but refuses to comply with others.
Because of the Union’s partial noncompliance, I directed
the parties to show cause, not later than December 20, why
I should or should not dismiss the complaint, and adjourned
the hearing indefinitely.
On December 16, I granted a request by the General
Counsel2 for a stay of the Show-Cause Order to permit her
to seek guidance from the General Counsel’s Division of Ad-
vice. By document dated February 21, 1992, presumably act-
ing on instructions from the Division of Advice, the General
Counsel appealed to the Board my failure to revoke the sub-
poena in full; and, by document dated March 11, Respondent
filed a cross-appeal regarding those portions I had revoked.
By document dated March 17, Respondent filed with me
a Motion for Summary Judgment. I responded on March 20,
deferring ruling pending word from the Board on the General
Counsel’s February 21 appeal.
On April 7, the Board issued an order denying both the
General Counsel’s appeal and Respondent’s cross-appeal and
remanding the matter to me ‘‘for further appropriate action.’’
The Board noted:
[T]he General Counsel’s special appeal and the Re-
spondent’s cross-appeal appear to raise complex issues
which do not readily lend themselves to resolution in
the interlocutory appeal procedures under Section
102.26 of the Board’s Rules and Regulations. The
Board also notes that the administrative law judge has
placed the parties on notice of his intention to dismiss
the complaint in its entirety if the Union refuses to
comply with the Respondent’s subpoena as directed by
the judge. Presumably the judge will write a fully ar-
ticulated decision at that time. In these circumstances,
the Board finds that the issues raised by the General
Counsel’s appeal and the Respondent’s cross-appeal are
more appropriately considered on the basis of a formal
decision by the judge under Section 102.35 of the Rules
and Regulations which is subject to the filing of excep-
tions and further briefing as provided in Section 102.46.
By order dated April 17, I gave the parties until May 11
to respond to my Show-Cause Order. I received the General
Counsel’s response on April 27, but nothing from the Union
or Respondent.
II. THE UNION’S NONCOMPLIANCE
The Union refuses to comply, as directed, with paragraphs
1, 7, and 8 of the subpoena. Those paragraphs call for certain
materials generated since July 1, 1990, namely:
Minutes of all meetings of Local 322, wherein you
have discussed organizing of [Respondent’s] stores . . .
including minutes of general membership meetings, ex-
ecutive board meetings or other minutes where orga-
nizing activities of [Respondent’s] stores were dis-
cussed. [Par. 1.]
Any reports that have been sent by Local 322 to any
International official concerning the handbilling or pick-
eting or other conduct or activities at the Smitty’s in
Springfield. [Par. 7.]
Minutes of all meetings of any organizing committee
or subcommittee of Local 322. [Par. 8.]3
The Union’s reasons for withholding production, as re-
flected by its petition to revoke, are that these paragraphs
seek documents regarding the internal affairs of the
Charging Party and its interunion [sic] activities. These
activities are protected under the Act and should not be
made available to the Union’s adversaries. The docu-
ments requested do not relate to any matter in this pro-
1380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Sec. 8(b)(7)(C) provides in pertinent part that a labor organiza-
tion commits an unfair labor practice by
picket[ing] or caus[ing] to be picketed . . . any employer where
an object thereof is forcing or requiring an employer to recog-
nize or bargain with a labor organization as the representative
of his employees, or forcing or requiring the employees of an
employer to accept or select such labor organization as their col-
lective bargaining representative, unless such labor organization
is currently certified as the representative of such employees
. . . where such picketing has been conducted without a petition
under section 9(c) being filed within a reasonable period of time
not to exceed thirty days from the commencement of such pick-
eting . . . Provided further, That nothing in this subparagraph
(C) shall be construed to prohibit any picketing or other pub-
licity for the purpose of truthfully advising the public (including
consumers) that an employer does not employ members of, or
have a contract with, a labor organization . . . .
5 This defense would be available although the illegality of the
picketing and handbilling had not been found in previous litigation,
or if the General Counsel, by prior administrative determination, had
found it to be legal. Chicago Tribune Co., 304 NLRB 259 (1991).
6 The second proviso appears above in fn. 4.
7 After I ruled on the petition to revoke and before the Union de-
finitively announced its refusal to comply, the General Counsel in-
troduced evidence that the picket signs stated: ‘‘America works best
when we say . . . Union Yes. Please don’t shop Smitty’s. United
Food and Commercial Workers Union, AFL–CIO.’’ The General
Counsel also introduced a handbill, which stated in part that Re-
spondent ‘‘does not provide AFL–CIO union negotiated wages,
hours, and working conditions for their employees.’’ Even had the
record been developed in these respects before my ruling, I would
have been unable to conclude—not knowing what other evidence
might eventuate and without close legal analysis—that the require-
ments of the proviso had been so irrefutably satisfied as to remove
the issue of object from the case. My hesitance in this regard is rein-
forced by the Board’s observations in Mine Workers District 17
(Hatfield Dock), 302 NLRB 441 (1991), that the task of interpreting
Sec. 8(b)(7) ‘‘is a formidable one,’’ that Sec. 8(b)(7) is ‘‘not notable
for its clarity,’’ and that ‘‘courts and commentators frequently have
characterized the language in this provision, and specifically that in
Subsection 8(b)(7)(C), as ‘murky,’ ‘confusing,’ and inartfully draft-
ed.’’
8 The Eighth Circuit reversed the Board’s finding that the noncom-
plying charging party had been illegally discharged—but because it
disagreed with the Board’s evaluation of the evidence, not because
of subpoena noncompliance. NLRB v. Selwyn Shoe Mfg. Corp., 428
F.2d 217, 223 (8th Cir. 1970). The court rejected the respondent’s
argument that the Board should have dismissed the case in entirety
because of the noncompliance, concluding as had the Board that the
respondent ‘‘was not prejudiced.’’ Id. at 226.
ceeding and are not material or relevant to any issue in
this proceeding.
Respondent’s stated purpose in demanding these materials
was to seek evidence that the picketing and handbilling ac-
tivities to which its alleged misconduct was addressed had a
recognitional object proscribed by Section 8(b)(7)(C) of the
Act, and thus were unprotected.4 The underlying legal
premise is sound; activities that violate Section 8(b)(7)(C)
are unprotected. Rapid Armored Truck Corp., 281 NLRB
371, 371 fn. 1, 381–382 (1986); Teamsters Local 707 (Clare-
mont Polychemical), 196 NLRB 613, 614–615 (1972).5
The General Counsel contends, on the other hand, that the
Union’s activities came within the so-called second proviso
in Section 8(b)(7)(C), so were protected regardless of object
and duration.6 The legal predicate behind this contention
likewise is valid. Laborers Local 840 (Blinne Construction),
135 NLRB 1153, 1158–1159 (1962).
Section 11(1) of the Act provides that the Board ‘‘shall re-
voke’’ a subpoena, on application, ‘‘if in its opinion the evi-
dence whose production is required does not relate to any
matter under investigation, or any matter in question in such
proceedings . . . .’’ As its terms and the absence of pre-
hearing discovery warrant, this language is generously con-
strued. E.g., Oklahoma Press Publishing Co. v. NLRB, 327
U.S. 186, 208–209 (1945); Endicott Johnson Corp. v. NLRB,
317 U.S. 501, 509 (1943); NLRB v. G.H.R. Energy Corp.,
707 F.2d 110, 113 (5th Cir. 1982); NLRB v. Williams, 396
F.2d 247, 249 (7th Cir. 1968).
Although one cannot know without examining them, the
minutes and reports the Union refuses to produce very well
could ‘‘relate to’’ the object of its picketing and handbilling.
I therefore conclude, consistent with my ruling at the hear-
ing, that Respondent’s subpoena satisfies the governing
standard for production with respect to those materials.
So doing, I reject the General Counsel’s contention that
the second proviso renders the Union’s object irrelevant. This
contention assumes, incontrovertibly and without supporting
evidence, that the picketing and handbilling conformed with
the proviso requirement.7 I also reject the argument implicit
in the Union’s petition to revoke that the subject materials
are insulated from production by legal privilege.
III. DISMISSAL AS A SANCTION FOR THE UNION’S
NONCOMPLIANCE
The question remains whether dismissal is a proper sanc-
tion for the Union’s noncompliance. That in turn raises two
subissues: whether the Act endows the Board with the power
to impose that sanction and, if so, whether the present cir-
cumstances warrant its imposition.
A. The Board’s Power
I have found no decisions in which the Board has dis-
missed a complaint because of a charging party’s subpoena
noncompliance. It considered that sanction in Selwyn Shoe
Mfg. Corp., 172 NLRB 674 (1968), but concluded, based on
its evaluation of the evidence and without speaking to the
threshold question of statutory power, that the charging par-
ty’s nonproduction did not prejudice the respondent and so
did not warrant dismissal.8
Although the Board apparently has never imposed the
sanction of dismissal because of subpoena noncompliance, it
has imposed other sanctions, including the drawing of ad-
verse inferences, permitting the party seeking production to
use secondary evidence, precluding the noncomplying party
from cross-examining about or rebutting that evidence, etc.
E.g., Control Services, 303 NLRB 481 (1991); International
Medication Systems, 244 NLRB 861, 862 fn. 2 (1979);
Bannon Mills, 146 NLRB 611, 613 fn. 4, 633–634 (1964).
The courts of appeals generally have sustained the Board’s
use of these sanctions, citing the Board’s inherent ‘‘interest’’
in maintaining ‘‘the integrity of the hearing process.’’ NLRB
v. C. H. Sprague & Son, 428 F.2d 938, 942 (1st Cir. 1970);
NLRB v. American Art Industries, 415 F.2d 1223, 1230 (5th
Cir. 1969). Indeed, in Auto Workers v. NLRB, 459 F.2d 1329
(D.C. Cir. 1972), the court chided the Board at considerable
1381SMITTY’S SUPERMARKETS
9 Sec. 11(2) of the Act provides that, ‘‘in case of contumacy or
refusal to obey’’ a Board subpoena, the Federal District Courts
‘‘upon application by the Board shall have jurisdiction to issue . . .
an order requiring’’ compliance, and that ‘‘any failure to obey such
order . . . may be punished by said court as a contempt thereof.’’
10 The same argument appears in Note, The Argument for Agency
Self-Enforcement of Discovery Orders, 83 Col. L.R. 215 (1983),
wherein the commentator observes at 228–229: ‘‘Discovery sanc-
tions are merely a modern derivation of the contempt power, the
ability to force compliance with one’s orders. Consequently, if agen-
cies do not possess contempt power, they do not possess discovery
sanction power . . . .’’
11 The administrative law judge in Control Services, supra, ac-
knowledged but disregarded the Ninth Circuit’s International Med-
ical Systems decision, instead relying on Bannon Mills, supra, ‘‘and
its progeny.’’ 303 NLRB at 491 fn. 4 and accompanying text. The
Board observed that the judge properly relied on ‘‘Bannon Mills
. . . and its progeny’’ in light of the respondent’s refusal ‘‘to honor
valid subpoenas for documents.’’ Id.
length for not drawing an adverse inference faced with non-
production.
The Ninth Circuit is an exception. Denying enforcement in
part of the Board’s Order in International Medication Sys-
tems, supra, it took the view that the Board’s only recourse
in the circumstance of subpoena noncompliance is to initiate
enforcement proceedings in Federal district court.9 NLRB v.
International Medication Systems, 640 F.2d 1110 (9th Cir.
1981). The court accordingly faulted the Board’s refusal to
permit a noncomplying respondent to rebut secondary evi-
dence, and remanded the unenforced portion of the case ‘‘for
the taking of additional evidence and an opportunity to seek
enforcement of the subpoenas in district court.’’ 640 F.2d at
1115–1116.
In support of this treatment, the Ninth Circuit, at 1115, ex-
humed this passage from I.C.C. v. Brimson, 154 U.S. 447,
485 (1894):
The inquiry whether a witness before the Commission
is bound to answer a particular question . . . or to
produce books, papers, etc., in his possession and called
for by that body, is one that cannot be committed to
a subordinate administrative or executive tribunal for
final determination.
The court also invoked Williams, Authority of Federal
Agencies to Impose Discovery Sanctions: The FTC—A Case
in Point, 65 Geo. L.J. 739 (1977), stating at 640 F.2d 1115
fn. 5:
Williams suggests that the power to impose discovery
sanctions (and to determine the propriety of a sub-
poena) is inherently judicial and emerges from the con-
tempt power. . . . He concludes that Congress has not
vested agencies with this power and could not do so
without violating due process by denying the party a
fair opportunity to object to the discovery order.10
The Board, on remand, accepted the Ninth Circuit’s think-
ing as the law of the case. International Medication Systems,
274 NLRB 1197 (1985). It did not give it broader signifi-
cance, however, and in a later case, Control Services, supra,
tacitly rejected it.11
The District of Columbia Circuit has rejected the Ninth
Circuit’s teaching, as well. In Atlantic Richfield Co. v. U.S.
Department of Energy, 769 F.2d 771 (D.C. Cir 1984), the
court stated at 793, in answer to the company’s reliance on
NLRB v. International Medication Systems, that it could not
accept ‘‘the thesis’’ that the Department of Energy
cannot impose evidentiary sanctions—of course, short
of fine or imprisonment—when necessary to preserve
the integrity of an authorized adjudicative proceeding.
The court noted at 793 that, whereas the Supreme Court’s
Brimson decision, cited by the Ninth Circuit, dealt with an
investigative subpoena, it
is wholly silent as to the power [of] an agency acting
in an authorized judicial or quasi-judicial capacity to
impose sanctions short of a fine or imprisonment in
order to compel compliance with discovery orders
issued during the course of an adjudicatory proceeding.
The court added at 793 that Brimson ‘‘was decided in
1894, long before the advent of the ’modern administrative
state.’’’ The court further stated at 794:
We think the broad congressional power to authorize
agencies to adjudicate ‘‘public rights’’ necessarily car-
ries with it power to authorize an agency to take such
procedural actions as may be necessary to maintain the
integrity of the agency’s adjudicatory proceedings.
The court continued at 795:
It seems to us incongruous to grant an agency authority
to adjudicate—which involves vitally the power to find
the material facts—and yet deny authority to assure the
soundness of the fact-finding process. Without an ade-
quate evidentiary sanction, a party served with a dis-
covery order in the course of an administrative adju-
dicatory proceeding has no incentive to comply, and
oft-times has every incentive to refuse to comply.
Based on the Board’s longstanding use of assorted sanc-
tions to deal with subpoena noncompliance, the general ap-
proval of their use by the courts of appeals, and the D.C.
Circuit’s persuasive repudiation of the Ninth Circuit’s con-
trary view, I conclude that the practice is within the Board’s
statutory power.
Moreover, I am unable to distinguish in legal principle be-
tween the sanctions the Board regularly has applied and that
of dismissal in appropriate circumstances. Nor, apparently,
can the Board, given its rationale—that nonproduction did
not prejudice the respondent—for withholding that sanction
in Selwyn Shoe Mfg. Corp., supra. Dismissal inarguably is
more akin to the accepted Board sanctions than to the con-
tempt sanctions of fine or imprisonment, which are beyond
the Board’s power. I therefore further conclude that dismissal
is among the family of sanctions properly at the Board’s dis-
posal to maintain the integrity of the hearing process.
B. The Appropriateness of Dismissal in the Present
Circumstances
Were this a civil matter, dismissal plainly would be appro-
priate under Rule 37(b)(2)(C) of the Federal Rules of Civil
Procedure. But, although Section 10(b) of the Act mandates
that unfair-labor-practice proceedings ‘‘shall, so far as prac-
ticable, be conducted in accordance with the rules of evi-
1382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Cf. Sec. 10584.1 of the Board’s Casehandling Manual, Part III,
which states that ‘‘the right to the reinstatement and backpay claim
of a noncooperative discriminatee may be eliminated or com-
promised’’ if a settlement agreement can be achieved that otherwise
satisfies the policies of the Act.
13 In light of his disposition, the administrative law judge saw no
need to address Respondent’s March 17 Motion for Summary Judg-
ment or its earlier cross-appeal of my partial revocation of its sub-
poena.
dence applicable in the district courts of the United States
under the rules of civil procedure,’’ Rule 37(b)(2)(C) ‘‘is not
directly in point.’’ NLRB v. Selwyn Shoe Mfg. Corp., supra,
428 F.2d at 224.
The remedies under the Act are designed to serve the pub-
lic interest in the peaceful resolution of labor disputes, rather
than vindicate private rights. Dismissal because of a charging
party’s defiance of a subpoena must be reconcilable, then,
with that larger interest. I conclude, in the present cir-
cumstances, that the public interest would be better served by
dismissal than by either of the alternatives—imposing the ad-
verse-inference rule or ignoring the Union’s intransigence. I
base this conclusion on this aggregate of factors:
1. To permit a charging party to invoke the processes of
the Act and draw on the resources of the Board, and yet to
impede the Board’s ability to ensure justice to all parties by
flouting a valid subpoena, would compromise the Board’s
credibility as a nonpartisan servant of the public interest.
2. The Union could avoid dismissal by the simple expe-
dient of complying with the subpoena.
3. Dismissal would not sacrifice the specific interests of
anyone—an alleged discriminatee, for instance—powerless to
comply with the subpoena and thereby avoid that fate.12
4. The materials sought by Respondent go to the core of
its defense, not to an issue of only collateral import.
5. Although the adverse-inference rule is a useful and
sometimes necessary sanction, a result dictated or influenced
by its application is less satisfactory than one based on the
evidence for which it substitutes—which evidence the Union
chose to withhold.
CONCLUSION OF LAW
Dismissal of the complaint is warranted because of the
Union’s partial noncompliance with Respondent’s subpoena.
[Recommended Order13 for dismissal omitted from publi-
cation.]