Teamsters Local 917 (Peerless Importers)

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 1010 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 76
1010
Local 917, International Brotherhood of Teamsters1
and Peerless Importers, Inc. Case 29–CE–128
September 30, 2005
DECISION AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 30, 2005, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Charg-
ing Party filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the Charging
Party filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order Remanding.
I. INTRODUCTION
This case arises from allegations that the Respondent,
Local 917 International Brotherhood of Teamsters, vio-
lated Section 8(e) of the Act. Before the hearing, the
Respondent served a subpoena on the Charging Party,
Peerless Importers, Inc. (Peerless), seeking certain in-
formation to support its defenses. When Peerless refused
to furnish certain information, the judge sua sponte dis-
missed the General Counsel’s complaint as a sanction
against Peerless. For the reasons set forth below, we find
that the judge abused his discretion by imposing this
harsh sanction under the circumstances of this case.
II. BACKGROUND2
Peerless is an employer engaged in the distribution of
alcoholic beverages throughout the New York City Met-
ropolitan area. The Respondent represents a unit of Peer-
less’ drivers and helpers. The parties’ collective-
bargaining agreement generally requires Peerless to use
unit employees to handle shipments to and from its fa-
cilities.3

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The judge did not make any findings of fact in his decision, having
dismissed the General Counsel’s complaint without taking any evi-
dence. For purposes of reviewing the judge’s dismissal, we shall ac-
cept the complaint’s factual allegations as true and construe the com-
plaint in the light most favorable to the General Counsel. Cf. Detroit
Newspapers, 330 NLRB 524, 525 fn. 7 (2000) (denying respondent’s
motion to dismiss after accepting complaint’s factual allegations as true
and construing complaint in light most favorable to the General Coun-
sel). On remand, the judge is free to make factual findings based on the
evidence.
3 Sec. 3.27 of the collective-bargaining agreement provides that
“[t]he handling of all railroad shipments . . . must be done by employ-
ees covered by this agreement.” Sec. 3.28 provides that “[t]he unload-
ing, loading and transportation of merchandise at freight depots, do-
Peerless purchases alcoholic beverages from a sup-
plier, Diageo North America Inc. (Diageo). Before Oc-
tober 1, 2002, Peerless was one of two distributors of
Diageo’s beverages. After submitting the successful bid
in a competition, Peerless became Diageo’s exclusive
distributor. On October 1, 2002, Peerless and Diageo
entered into a distribution agreement governing their
exclusive-dealing relationship.
Beginning in the spring of 2003, Diageo started using
its own employees to transport beverages to Peerless;
unit employees no longer handled these shipments. Con-
sequently, the Respondent filed a grievance in November
2003 alleging that Peerless breached the collective-
bargaining agreement by failing to use unit employees to
transport Diageo’s beverages from Diageo’s facility to
Peerless’ warehouse. The Respondent demanded arbitra-
tion over that grievance. In the arbitration, Peerless de-
fended on the ground that the Respondent was violating
Section 8(e) by attempting to apply the collective-
bargaining agreement to work that Peerless no longer
controlled. On September 28, 2004, an arbitrator issued
an award finding that Peerless breached the collective-
bargaining agreement by “permitting merchandise from
Diageo North America to be delivered to the Company’s
[Peerless’] warehouse by non-bargaining unit personnel.”
Although the arbitrator found that Peerless breached the
collective-bargaining agreement, he expressly refused to
pass on Peerless’ 8(e) defense. The arbitrator explained
in his decision that the Board should decide the 8(e) is-
sue. Consequently, the arbitrator postponed issuing a
remedy and directed Peerless to file an unfair labor prac-
tice charge with the Board.4
Peerless filed a charge with the Board on October 6,
2004. On December 30, 2004, the General Counsel is-

mestic and foreign, has been and continues to be unit work within the
scope of this Agreement.” Sec. 3.29 provides that “[m]erchandise
shipped from anywhere within the Continental United States or its
possessions, including Puerto Rico, whether by steamship, steamship
container, or steamship van, piggyback, fishy-back, birdy-back, railroad
car or van, shall come to rest somewhere within the areas mentioned
above there to be handled and transported to the wholesaler by employ-
ees covered by this Agreement.” Sec. 3.30 provides that “[t]he Em-
ployer shall transport all such merchandise arriving in above named
conveyances with its own equipment and with a chauffeur and helper
from the seniority list assigned to each truck.” Finally, sec. 3.31 pro-
vides that “[m]erchandise in foreign commerce . . . shipped here,
whether loaded in vans, containers, tanks or other conveyances and all
consignments of wines and liquors . . . shall be unloaded and/or trans-
ported wholly in the state of its arrival, by chauffeurs and helpers cov-
ered by this Agreement.”
4 The arbitrator’s award stated, “If the Company does not file an un-
fair labor practice charge with the NLRB within 60 days of the date of
this Award, or if the NLRB does not issue a complaint after such a
charge is filed, the Arbitrator will hold a hearing at the request of either
party to determine the appropriate remedy.”
TEAMSTERS LOCAL 917 (PEERLESS IMPORTERS) 1011
sued a complaint alleging that the Respondent violated
Section 8(e) by grieving Peerless’ failure to use unit em-
ployees to perform covered work.
Before the unfair labor practice hearing, the Respon-
dent served a subpoena on Peerless seeking: (1) all
documents and any materials that relate to Peerless’ use
of nonunit personnel to move freight including, but not
limited to, any contracts or agreements with Diageo; and
(2) all documents relating to meetings or discussions
with Diageo concerning the movement of freight. Peer-
less filed a petition to revoke the subpoena on March 1,
2005. On March 7, 2005, the judge issued an order re-
serving ruling on Peerless’ petition.
At the hearing, Peerless offered to provide the Re-
spondent with a redacted version of its distribution
agreement with Diageo. Peerless also furnished an unre-
dacted copy to the judge to review in camera. On the
record, the judge reviewed the redacted and unredacted
versions side by side, while Respondent’s counsel fol-
lowed along with a redacted copy.5
Peerless then asked the judge to issue a protective or-
der in the event that he would require it to furnish an
unredacted version of the distribution agreement to the
Respondent. The judge refused, explaining, “I don’t do
confidentiality orders . . . . You want to try the case, turn
over the document; you don’t want to try the case, good-
bye.”
Peerless refused to furnish an unredacted copy in the
absence of a protective order. Consequently, the judge
stated on the record that he intended to dismiss the com-
plaint sua sponte as a sanction for the noncompliance,
and he closed the hearing without taking any evidence.
No party had urged the judge to dismiss the complaint.
The judge invited the parties to file posthearing briefs
and indicated that a written opinion would soon follow.
The judge later issued his written decision dismissing
the complaint sua sponte. He found that the redacted
information “could possibly be relevant” to the Respon-
dent’s defense and that Peerless lacked a confidentiality
interest sufficient to warrant nondisclosure. He noted
that he had denied Peerless’ request for a protective order
because, in his opinion, he lacked the power to hold
counsel in contempt for violating such an order.

5 The record before us does not contain either the redacted or the un-
redacted versions of the distribution agreement. However, the tran-
script of the hearing contains the judge’s description of the redacted
paragraphs during his side-by-side comparison. According to this
description, the redacted version offered by Peerless eliminated some
paragraphs and blackened out some of the numbers and percentages set
forth in various sections of the agreement. For example, it redacted the
contract’s cancellation fee, a performance bonus calculation, and a
business development fund calculation.
III. DISCUSSION
As discussed below, we find that the judge abused his
discretion by imposing the harsh sanction of dismissal
against the General Counsel for Peerless’ refusal to fully
comply with the subpoena. In finding that the judge
abused his discretion, we rely heavily on the existence of
less severe sanctions, which the judge could have im-
posed on Peerless..
The exercise of the authority to sanction parties who
fail to comply with a Board subpoena “is a matter com-
mitted in the first instance to the judge’s discretion.”
McAllister Towing & Transportation Co., 341 NLRB
394, 396 (2004).6 Accordingly, we review the judge’s
imposition of sanctions under the “abuse of discretion”
standard.7
As explained above, the Respondent served its sub-
poena on Peerless before the hearing in this matter.
When Peerless refused to furnish an unredacted copy of
the subpoenaed document, absent a protective order, the
judge dismissed the complaint. There were, however, a
number of other less drastic sanctions available to the
judge. See McAllister Towing, supra; NLRB Division of
Judges Bench Book Sec. 8-620. For example, the judge
could have permitted the Respondent to use secondary
evidence to prove that Peerless purposefully relinquished
its right to control the work at issue in order to avoid its
collective-bargaining obligations. Additionally, the
judge could have precluded Peerless from rebutting that
secondary evidence or cross-examining witnesses about
it. Also, the judge could have drawn adverse inferences
against Peerless. Although the judge had available a
wide range of seemingly appropriate sanctions, he took
the unusual, and perhaps unprecedented, step of dismiss-
ing the complaint. See Smitty’s Supermarkets, 310
NLRB 1377, 1380 (1993) (“[T]he Board apparently has
never imposed the sanction of dismissal because of sub-
poena noncompliance.”); see also General Drivers Local
554, 253 NLRB 1, 2 (1980); Selwyn Shoe Mfg. Corp.,
172 NLRB 674, 675 (1968), enfd. in relevant part 428
F.2d 217 (8th Cir. 1970).

6 Although Member Schaumber dissented in McAllister Towing, su-
pra, he does not disagree with the proposition for which it is cited here.
7 We are reviewing only the sanction imposed by the judge on Peer-
less for refusing to comply with the subpoena. We are not reviewing
the judge’s ruling denying Peerless’ request for a protective order.
Peerless did not request special permission from the Board for an inter-
locutory appeal of the judge’s ruling denying its request for a protective
order. See Sec. 102.26 of the Board’s Rules and Regulations. Nor did
Peerless file an exception to that ruling. Despite the judge’s stated
aversion to issuing a protective order, it is clear that judges do have that
authority. AT&T Corp., 337 NLRB 689, 693 fn. 1 (2002); National
Football League, 309 NLRB 78, 88 (1992); United Parcel Service, 304
NLRB 693 (1991); Carthage Heating Co., 273 NLRB 120, 123 (1984).
NLRB Division of Judges Bench Book § 8–330.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1012
Given the availability of less severe sanctions, which
the judge apparently did not consider, we find that the
judge abused his discretion by dismissing the complaint.8
ORDER
IT IS ORDERED that the December 30, 2004 complaint
is reinstated.
IT IS FURTHER ORDERED that this proceeding be re-
manded to Administrative Law Judge Raymond P. Green
for further action consistent with this decision.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules shall be applicable.
Rachel Zweighaft Esq., for the General Counsel.
Gene M. J. Szuflita, Esq., counsel for the Union.
Allen B. Roberts, Esq. and Donald B. Krueger, Esq., counsel
for the Charging Party.
DECISION
RAYMOND P. GREEN, Administrative Law Judge. I opened
and closed this hearing on March 8, 2005, without taking testi-
mony. In essence, I decided to dismiss this case when the
Charging Party’s counsel refused to turn over an unredacted
copy of a document subpoenaed by Local 917, International
Brotherhood of Teamsters after I had denied a petition to re-
voke. I am going to dismiss the complaint because I believe
that the document in question could possibly be relevant to the
only defense that the Respondent could make in this case and
therefore, its nondisclosure would be prejudicial to the Respon-
dent’s right to a fair trial.
The charge was filed by Peerless Importers Inc. on October
6, 2004, and the complaint was issued on December 30, 2004.
In substance the complaints alleged:

8 Because neither the unredacted nor the redacted versions of the dis-
tribution agreement are in the record before us, we do not reach the
issue of whether the redacted information is confidential or lacks any
relevance to contested issues. These are issues to be addressed by the
judge on remand. Consequently, we deny Peerless’ exception to the
judge’s ruling denying its petition to revoke the subpoena.
Member Schaumber agrees with his colleagues that the judge had a
number of options available to him short of dismissal of the complaint.
In addition, in his view, the judge’s handling of the Charging Party’s
request for a protective order, particularly his response that “[he] does
not do confidentiality orders,” does not appear to be the kind of dis-
cerned consideration of an issue raised by a party appearing before the
Board which one is to expect. If the judge was hesitant for some reason
to rule on the matter, he could have called a recess to give the parties an
opportunity to resolve the Charging Party’s confidentiality concern
informally. Absent giving the parties such an informal opportunity,
Member Schaumber believes the judge should have considered the
merits of the request and granted or denied it.
1. That Peerless, located at 16 Bridgewater Street, Brooklyn,
New York, is engaged in the distribution of alcoholic bever-
ages.
2. That Diageo North America Inc., located at 450 Park
Ave. South, New York, New York, is engaged in the wholesale
distribution of alcoholic beverages.
3. That on or about May 17, 2004, Peerless and the Union
entered into an agreement retroactive to November 11, 2002,
that states:
3.27. Scope of Agreement. The handling of all railroad
shipments, whether it be piggy back, tractor-trailer, flexi-
van, or any other type of railroad conveyance, and those of
freight consolidators and car loading companies, and
freight brought via water or water borne, fish-back or
birdy-back, originating elsewhere and terminating any-
where within Kings County, New York County, Bronx,
Queens, Nassau and Suffolk Counties, bounded roughly
by a line starting on the North Shore of Port Jefferson and
running southward through Coram in the middle and on
down to Patchogue on the South Shore, and in Staten Is-
land and within a radius of fifty miles into the State of
New Jersey, must be done by employees covered by this
Agreement.
3.28. The unloading, loading and transportation of
merchandise at freight depots, domestic and foreign, has
been and continues to be unit work within the scope of this
Agreement. All freight consigned to wine and whisky
wholesalers, distributors, distillers, rectifiers or other proc-
essors or receivers of same, under contract to the Union,
shall be handled and hauled from anywhere within the ar-
eas mentioned above to the Employer's receiving and
shipping premises in accordance with the following stipu-
lations and conditions, provided, however, if the Em-
ployer, at its option, assigns at least two employees as
regular platform workers, the employer shall not be re-
quired to employee drivers and helpers for each outside
vehicle.
3.29. Merchandise shipped from anywhere within the
Continental United States or its Possessions, including
Puerto Rico, whether by steamship, steamship container,
or steamship van, piggyback, fishy-back, birdy-back, rail-
road car or van, shall come to rest somewhere with the ar-
eas mentioned above, there to be handled and transported
to the wholesaler by employees covered by this Agree-
ment.
3.30. The Employer shall transport all such merchan-
dise arriving in above named conveyances with its own
equipment and with a chauffeur and helper from the sen-
iority list assigned to each truck. The chauffeur must re-
main with the load he or she has picked up until it is fully
unloaded.
3.31 Merchandise in foreign commerce from other
countries or commonwealths, arriving at ports in the
United States or arriving at foreign ports and subsequently
shipped here, whether loaded in vans, containers, tanks or
other conveyances and all consignments of wines and liq-
uors, or part thereof, when arriving or conveyed in barrels,
TEAMSTERS LOCAL 917 (PEERLESS IMPORTERS) 1013
casks, hogshead, pipes, tanks, or other type bulk liquor
carrier, whether originating domestically or imported,
shall be unloaded and/or transported wholly in the state of
its arrival, by chauffeurs and helpers covered under the
Agreement. Pier and piggyback may exceed six hundred
cases.
4. That starting in or about April 2003, Diageo began mak-
ing delivers of alcoholic beverages directly to the Employer's
Brooklyn facility.1
5. That in or about November 2003, the Respondent at-
tempted to apply the provisions of the agreement to the deliver-
ies made by Diageo by filing a grievance alleging that Peerless
was violating the agreement by allowing Diageo to make deliv-
eries of alcoholic beverages directly to the Brooklyn facility.
6. That on or about June 28, 2003, the Union took the afore-
said grievance to arbitration thereby entering into and reaffirm-
ing the agreement described above. This agreement, as applied,
is alleged to violate Section 8(e) of the Act.
The complaint alleges, the answer admits, and I find that the
Charging Party is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The answer
also admits and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
I received into evidence as General Counsel Exhibit 2, an
Opinion and Award issued on September 28, 2004, by arbitra-
tor Richard Adelman. That Award was issued after he held a
hearing on June 28, 2004. In that forum, in which both parties
were represented by counsel and had the opportunity to present
evidence, Peerless contended that the decision to have the de-
liveries made by Diageo’s drivers was not within Peerless’
control and/or that the provisions that the Union were seeking
to enforce were violative of Section 8(e) of the National Labor
Relations Act (the Act). As to the 8(e) argument, the arbitrator
noted that the Company had not filed an 8(e) charge with the
NLRB and that although he would have no hesitancy in ruling
on that question if the Board had deferred its own proceedings
to arbitration, that was not the case here. He also stated:
Moreover, assuming that the Company’s reading of the law
regarding the meaning of the “right of control” test is correct,
the Company, by not submitting its agreement with Diageo
into evidence, failed to establish that Diageo had control over
the work at issue. In addition, as stated above, the Company
was aware of the terms of the agreement with the Union at the
time it contracted with Diageo, yet the Company did not no-
tify the Union of the arrangement it was making with Diageo.
In short, although the Arbitrator finds that the Company vio-
lated the Agreement, it is not clear whether or not the Com-
pany had the requisite control over the work, or whether or
not other factors should be considered in determining if Sec-
tion 8(e) has been violated, decisions that should be made by
the NLRB.2

1 At the opening of the hearing, the General Counsel amended this
allegation to change the date from October to April 2003.
2 One wonders what impact, if any, the Board’s Speilberg doctrine
would have on this type of case if the arbitrator applied the applicable
law and made fact findings that were not clearly erroneous.
The General Counsel asserted in her opening statement that
she was not claiming that the clauses referred to above, taken
separately or together, violated Section 8(e) of the Act on their
face. That is, she concedes that the clauses could be interpreted,
in the appropriate circumstances, as having a valid work pres-
ervation object. Her contention is that in the present circum-
stances, the Union asked the arbitrator to enforce the clause in
an unlawful way because the work claimed (certain truck driv-
ing) was work “not within the control” of Peerless and there-
fore was not work that could be “preserved.”
The legal principles in these types of cases are as follows. In
cases involving Section 8(e), the General Counsel alleges that a
contract between a union and a company employing individuals
represented by the union has entered into an agreement
whereby the company has agreed not to do business with any
other person with whom the union has a primary dispute. In
those circumstances, if such an agreement, either on its face or
in its specific application, is used to prevent an employer or
person with whom the union has no primary dispute to cease
doing business with another employer with whom the union
does have a primary dispute, then the agreement is deemed to
have a secondary objective and constitutes a violation of Sec-
tion 8(e) of the Act. In such circumstances, the employer hav-
ing the collective-bargaining agreement with the union is de-
scribed as being an “unoffending neutral.”
Inasmuch as the agreement was made more than 6 months
prior to the filing of the charge, the General Counsel must show
that it was reaffirmed within the 10(b) statute of limitations
period. Board cases have held that this test can be met by show-
ing that the union has filed a grievance and taken a case to arbi-
tration to enforce the contractual provisions, not for a work
preservation objective, but to compel the contracting employer
to cease doing business with another employer or person. Ele-
vator Constructors (Long Elevator), 289 NLRB 1095 (1988).3
Faced with this type of charge, a union typically argues that
the attacked clause does not have a secondary objective and
that it merely is designed to preserve the work of the bargaining
unit employees covered by the collective bargaining agreement
within which the alleged offending clauses reside. In this case,
the Union contends that it has a contract with Peerless that cov-
ers the wages, hours and working conditions of truckdrivers
who are employed by Peerless. It contends, and that facts no
doubt would confirm, that for years, Peerless truckdrivers have
uniformly had the assignment of picking up beverages from

3 I should note here that the Board in this case also held that an 8(e)
finding based on the filing for arbitration would not be inconsistent
with the holding of Bill Johnson’s Restaurant. The Board stated:
Because we have concluded that the contract clause as construed by
the Respondent would violate Section 8(e), we may properly find the
pursuit of the grievance coercive, notwithstanding the Supreme
Court’s decision in Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731
(1983). Although holding that the Board could not enjoin, as an unfair
labor practice, the lawsuit at issue in that case, the Court expressly
noted that it was not dealing with a “suit that has an objective that is il-
legal under federal law.” 461 U.S. at 737 fn. 5. See also Teamsters
Local 705 v. NLRB (Emery Air Freight), 820 F.2d 448 (D.C. Cir.
1987) (distinguishing between having an unlawful motive in bringing
a lawsuit and seeking to enforce an unlawful contract provision).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1014
Diageo’s facility and delivering them to its own warehouse.
Therefore, the Union asserts that (a) this type of delivery work
is clearly bargaining unit work; (b) that the Union is merely
seeking to preserve that work for the employees it represents;
and (c) that it therefore has a “primary” dispute with Peerless
and not with Diageo. In seeking to enforce its contract with
Peerless, the Union contends that it merely is trying to enforce
the bargain it made with Peerless to preserve bargaining unit
work.
The General Counsel responds to this argument by contend-
ing that although the clauses in question may very well have a
preservation of work objective, its enforcement in this case
would have a secondary objective because in this case Diageo
made the decision to have the deliveries reassigned from Peer-
less’ drivers to its own drivers. She therefore argues that when
this happened in April 2003, Peerless no longer had the “right
to control” regarding the assignment of this work. Arguing that
Peerless, having lost the right of control, the General Counsel
contends that enforcement of the clauses in question cannot
have a primary work preservation objective because Peerless no
longer had the work to be preserved. That is, even if Peerless
wanted to, it could not assign the work to its own drivers. The
leading case dealing with the distinction between lawful work
preservation clauses versus unlawful secondary hot cargo
clauses is National Woodwork Mfrs. Assn. v. NLRB, 386 U.S.
612 (1967).
Of course every thrust has its riposte and the Union argues
that if it turns out that Peerless had a role with Diageo in mak-
ing the decision to have the work reassigned from its own driv-
ers to the drivers of Diageo (perhaps in order to reduce its own
costs), then Peerless would not be an innocent party to this
transaction and therefore the General Counsel would not have
the right to argue that Peerless did not have the “right of con-
trol.”4 The Union was not privy to the negotiations between
Diageo and Peerless that led up to either the original Distribu-
tion Agreement or to a change in what appears to have been a
long standing practice in the way that deliveries were made
from one to the other. (According to the arbitrator, the Union
was not even given advance notice of the change.) And since
the Union does not have access, in a Board proceeding, to any
form of pretrial discovery, it subpoenaed certain information
from Peerless (returnable on the date of the hearing), no doubt
hoping that such documents, in conjunction with skillful cross
examination and a little bit of luck, would show that Peerless
was not an “unoffending neutral.” Quite frankly, under the
existing view of the law, this would be the Union’s only avail-
able legal defense. See for example, Painters District Council
No. 20 (Uni-Coat Spray Painting Inc.), 185 NLRB 930 (1970).
Prior to the opening of the hearing, the Union’s counsel sub-
poenaed documents from the Charging Party. Schedule A of the
subpoena lists the documents as:

4 It is hypothetical but entirely possible that in seeking to obtain the
contract from Diageo, Peerless overbid on its pricing and found itself
burdened by an inflated cost structure. In that case, it is again hypo-
thetical but possible that the solution could have been for the parties to
have agreed that Diageo would undertake the costs of deliveries, by
having its own drivers do the work and thereby mitigate Peerless’ cost
structure by eliminating that expense from Peerless.
1. All documents and any materials that relate to Peer-
less’ use of non-unit personnel to move freight including,
but no limited to, any contracts or agreements with Diageo
North America, Inc.
2. All documents relating to meetings or discussions
with Diageo North America Inc. concerning the movement
of freight.
On March 1, 2005, Peerless filed a petition to revoke the
subpoena, albeit it did offer to produce “a copy of relevant
portions of the Distribution Agreement, [between Diageo and
Peerless], redacted to preserve non-relevant confidential infor-
mation, at such time and such form as directed . . . .” Peerless
further stated that it would provide a document which included
a PowerPoint presentation entitled “Peerless Delivered Pricing
Operational Preview.”
On March 7, 2005, I issued an order indicating that I would
reserve ruling on the petition until after the opening statements
in the case. I also stated:
In this regard, the parties should be advised that once this case
becomes a matter of public record by way of a trial, any con-
tention that any documents or information is or should be
considered confidential is viewed with great skepticism by
me. Therefore, Peerless should bring to the hearing the entire
contents of the documents subpoenaed and be prepared to
present them to me in camera without any redactions.
Soon after the opening of the hearing, the subpoena issue
was revisited. And after a couple of hours of discussion, Peer-
less’ counsel obtained, via fax, an unredacted version of the
2002 distribution agreement between it and Diageo. The unre-
dacted version was shown to me along with the redacted ver-
sion. A redacted version was shown to the Respondent’s coun-
sel. From statements by Peerless’ counsel and based on a re-
view, it appears that this document is a contract between Dia-
geo and Peerless whereby Peerless became, after winning a bid
between itself and another local distributor, the exclusive dis-
tributor or alcoholic beverages imported or handled by Diageo
for a region encompassing New York City and environs. It is a
30-plus page document requiring certain sizeable payments by
Peerless to Diageo and requiring certain payments in the event
that either wants to terminate the agreement. The redacted ver-
sion eliminated some paragraphs and blackened out some of the
numbers and percentages set forth in various sections of the
agreement. There was nothing in the unredacted version of the
document that struck me as being sufficiently confidential so as
to warrant nondisclosure. Indeed, the General Counsel did not
argue that there was any confidential information in the unre-
dacted version of the agreement. (The document does not con-
tain trade secrets such as formulas, patents etc. and does not, as
far as I can see, disclose the types of commercial information,
such as customer lists, that might normally be described as
confidential.) Moreover, there did not seem to be anything in
the document that talked about whose drivers would make the
deliveries from Diageo to Peerless.
Concluding that the Union was entitled to review any and all
documents relating to the relationship between Diageo and
Peerless concerning the sale and/or delivery of alcoholic bever-
TEAMSTERS LOCAL 917 (PEERLESS IMPORTERS) 1015
ages from 2002, I directed counsel for Peerless to turn over the
unredacted version of the agreement. I did so not because I
thought that this document would necessarily be decisive in
proving either side’s case, but because I felt that it was argua-
bly relevant to the Union’s defense and that it might lead to
other information that could be useful. Brinks Inc., 281 NLRB
468 (1986); Perdue Farms, Inc., 323 NLRB 345, 348 (1997),
enfd. 144 F.3d 830 (D.C. Cir. 1998) (information need only be
“reasonably relevant”). I do not know enough about this indus-
try to determine if the redacted information could be relevant to
the issues in this case, but since I don’t believe that they are
sufficiently confidential, I can see no reason to permit their
nondisclosure.
Notwithstanding my order, Peerless decided to not turn over
the unredacted version of the document to the Union and took
back all of the distributed redacted versions. Although I sug-
gested that counsel for Peerless might want to make the re-
dacted version an exhibit in the case in order to preserve the
record, counsel chose not to do so. Despite my previous warn-
ings, I thereupon closed the hearing and stated that I would
dismiss the complaint because the Charging Party’s attorneys
decided to not turn over information that could possibly be used
by the Union in support of its defense.5
[Recommended Order for dismissal omitted from publica-
tion.]

5 Earlier, the Charging Party’s counsel asked for a protective order in
relation to the documents. I decided that such an order would not be
appropriate inasmuch as I do not have the power to hold the other
counsels in contempt in the event that there is noncompliance. In short,
I see no point in issuing orders that cannot be enforced.