Brink'S Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1986

281 N.L.R.B. 468 (N.L.R.B. 1986)

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brink's Incorporated and New England Armored
Drivers and Helpers Association, Petitioner.
Case 1-RC-18349
16 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held before Hearing Officer S. Anthony DiCiero.
Following the hearing, and pursuant to Section
102.67 of the National Labor Relations Board's
Rules and Regulations , the case was transferred to
the National Labor Relations Board for decision.
Thereafter, the Employer filed a brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Briefly stated, the relevant facts are as follows.
The Employer's guard employees located at its
Dorchester, Massachusetts facility were represent-
ed by Local 25 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America for approximately 40 years. The Em-
ployer, on 1 November 1984, notified Local 25 that
it would withdraw recognition on 6 January 1985,
the date on which the most recent collective-bar-
gaining agreement between the two parties was to
expire.
The Petitioner was formed immediately follow-
ing a meeting between the unit employees and
Local 25 officials on 16 December 1984. The dis-
cussion of the Petitioner's formation was led by
employee Richard Campbell, who had been for 15
years, and was at that time, Local 25's steward in
the unit. Campbell was elected president of the Pe-
titioner, and other officers also were elected.
The instant petition was filed on 16 January
1985. At the hearing on the petition, the Employer
contended that under Section 9(b)(3) of the Act the
Petitioner was not qualified to represent the unit
guard employees because it was the alter ego of or
was affiliated with Local 25, a labor organization
that admits to membership employees who are not
guards.' The Petitioner took the position that it is
1 Sec. 9(bX3) of the Act provides that the Board shall not
... decide that any unit is appropriate for [collective-bargaining]
purposes if it includes, together with other employees , any individual
employed as a guard to enforce against employees and other persons
rules to protect property of the employer or to protect the safety of
persons on the employer's premises; but no labor organization shall
be certified as the representative of employees in a bargaining unit of
guards if such organization admits to membership , or is affiliated di-
rectly or indirectly with an organization which admits to member-
ship , employees other than guards.
an independent labor organization not affiliated
with any other labor organization.
Prior to the hearing, the Employer served sepa-
rate subpoenas duces tecum on (1) the president of
Local 25, (2) the "chief operating officer" of the
Petitioner, and (3) the "keeper of the records" of
the Petitioner.2 Thereafter, the individuals who
had been served with the subpoenas filed with the
Regional Director petitions to partially revoke sub-
poenas. The Regional Director- referred those peti-
tions to the hearing officer for ruling. At the hear-
ing, the hearing officer granted the petitions filed
by the Petitioner's chief operating officer and
keeper of the records and granted certain portions
of Local 25's president's petition. In addition, the
hearing officer revoked portions of the subpoena
served on the Petitioner's keeper of the records
that were not the subject of a written motion to
revoke.
After the close of the hearing, the Regional Di-
rector transferred the case to the Board. For the
following reasons, we grant the petitions to revoke
in their entirety without prejudice to the Employ-
er's obtaining new subpoenas, and we will remand
the case to the Regional Director for further ap-
propriate action.
Section 102.66(c) of the Board's Rules and Regu-
lations provides in pertinent part:
The regional director or the hearing officer, as
the case may be, shall revoke the subpoena, if,
in his opinion, the evidence whose production
is required does not relate to any matter under
investigation or in question in the proceedings
or the subpoena does not describe with suffi-
cient particularity the evidence whose produc-
tion is required, or if for any other reason suf-
ficient in law the subpoena is otherwise in-
valid.
With respect to the last-mentioned grounds for re-
voking a subpoena, that is, "any other reason suffi-
cient in law," the Federal Rules of Civil Procedure
provide useful guidance although they are not
binding on this Agency. Specifically, Federal Rules
of Civil Procedure 45(b),3 dealing with subpoenas
2 The latter two subpoenas were directed to Campbell.
s Rule 45(b) states.
(b) For Production of Documentary Evidence A subpoena may
also command the person to whom it is directed to produce the
books, papers, documents , or tangible things designated therein, but
the court, upon motion made promptly and in any event at or before
the time specified in the subpoena for compliance therewith, may (1)
quash or modify the subpoena if it is unreasonable and oppressive or
(2) condition denial of the motion upon the advancement by the
person in whose behalf the subpoena is issued of the reasonable cost
of producing the books , papers, documents , or tangible things.
281 NLRB No. 74
BRINK'S INC.
for the production of documentary evidence, and
Federal Rules of Civil Procedure 26(b)(1)4 and
(c),5 regarding the scope and limits of discovery in
civil cases in Federal courts, should be consulted
by Regional Directors and hearing officers when
ruling on motions to revoke subpoenas filed under
Section 102.66 of the Board 's Rules and Regula-
tions.
With respect to subpoenas in Federal court civil
cases, Federal Rules of Civil Procedure 45(b)
states, inter alia, that the court may, upon motion,
"quash or modify the subpoena if it is unreasonable
and oppressive." Regarding the general scope of
discovery, Federal Rules of Civil Procedure 26(b),
inter alia, permits discovery of matters "not privi-
leged"; "relevant to the subject matter involved in
the pending action"; but not "unreasonably cumu-
lative or duplicative, or . . . obtainable from some
other source that is more convenient, less burden-
4 Rule 26(bXl) states:
(b) Discovery Scope and Limits . Unless otherwise limited by
order of the court in accordance with these rules , the scope of dis-
covery is as follows:
(1) In General Parties may obtain discovery regarding any matter,
not privileged , which is relevant to the subject matter involved in
the pending action, whether it relates to the claim or defense of the
party seeking discovery or to the claim or defense of any other
party, including the existence, description , nature, custody, condition
and location of any books , documents , or other tangible things and
the identity and location of persons having knowledge of any discov-
erable matter. It is not ground for objection that the information
sought will be inadmissible at the trial if the information sought ap-
pears reasonably calculated to lead to the discovery of admissible
evidence.
The frequency or extent of use of the discovery methods . . . shall
be limited by the court if it determines that : (i) the discovery sought
is unreasonably cumulative or duplicative , or is obtainable from some
other source that is more convenient , less burdensome , or less expen-
sive; (ii) the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or (iii) the
discovery is unduly burdensome or expensive , taking into account
the needs of the case , the amount in controversy , limitations on the
parties' resources , and the importance of the issues at stake in the liti-
gation . The court may act upon its own initiative after reasonable
notice or pursuant to a motion under subdivision (c).
Rule 26(c) states:
(c) Protective Orders . Upon motion by a party or by the person
from whom discovery is sought, and for good cause shown, the
court in which the action is pending or alternatively , on matters re-
lating to a deposition , the court in the district where the deposition is
to be taken may make any order which justice requires to protect a
party or person from annoyance, embarrassment , oppression, or
undue burden or expense, including one or more of the following:
(1) that the discovery not be had; (2) that the discovery may be had
only on specified terms and conditions, including a designation of the
time or place; (3) that the discovery may be had only by a method
of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the
discovery be limited to certain matters; (5) that discovery be con-
ducted with no one present except persons designated by the court;
(6) that a deposition after being sealed be opened only by order of
the court ; (7) that a trade secret or other confidential research, de-
velopment , or commercial information not be disclosed or be dis-
closed only in a designated way; (8) that the parties simultaneously
flle specified documents or information enclosed in sealed envelopes
to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part,
the court may, on such terms and conditions as are just , order that
any party or person provide or permit discovery.
469
some, or less expensive." Furthermore, Federal
Rules of Civil Procedure 26(c) provides , inter alia,
that a court
... for good cause shown . . . may make any
order which justice requires to protect a party
or person from annoyance , embarrassment, op-
pression, or undue burden or expense, includ-
ing one or more of the following : (1) that the
discovery not be had; (2) that the discovery
may be had only on specified terms and condi-
tions ... (4) that certain matters not be in-
quired into ... (7) that a trade secret or other
confidential research, development, or com-
mercial information not be disclosed or be dis-
closed only in a designated way... .
On the other hand, Rule 26 (b) states, "It is not
ground for objection that the information sought
will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the
discovery of admissible evidence."
Most of the portions of the subpoenas that were
challenged in the petitions to revoke clearly did
not meet the standards described above . Many of
the documents sought by the Employer did not
relate to the Employer 's general contention that
the Petitioner is affiliated with Local 25 , and some
of the requested information arguably was subject
to the attorney-client privilege . Instead of examin-
ing each challenged subpoena paragraph, however,
we grant the relief sought by the petitions on the
grounds that the subpoenas generally were drafted
without regard for the usual standards applicable to
subpoenas or discovery, and we will remand the
case to the Regional Director for further appropri-
ate action.
In order to avoid delay and confusion should the
Employer seek to obtain new subpoenas , we will
address some portions of the subpoenas and some
of the hearing officer's rulings. For example, from
Local 25 the Employer requested "All minutes of
meetings" and related documents . To the extent
that this and other requested information concerns
nonguard employees of other employers , it "does
not relate to any matter . . . in question in the pro-
ceedings."e A request for such documents may also
be revocable on the grounds that it is , inter alia,
unreasonably broad. The Employer's request for
Local 25's membership lists and related documents
also may be unreasonable because no time limita-
tions are specified, and substantial privacy rights
may be at stake.
Each of the petitions to revoke also raised the
issue of attorney-client privilege . For example, the
6 Sec. 102.66(c) of the Board's Rules and Regulations.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner's chief operating officer and keeper of
the records objected to the portions of the respec-
tive subpoenas requesting all communications be-
tween the Petitioner and the Petitioner 's law firm,
and between the Petitioner 's officers and its law
firm . The possibility that some of this requested in-
formation would be privileged is clear , and the sub-
poenas should have been drafted to minimize that
possibility. Nevertheless, the hearing officer's
granting of the petitions to revoke these parts of
the subpoenas was erroneous . Instead of allowing
the Petitioner not to produce the documents, the
hearing officer should have conducted an in
camera inspection of the documents to determine
whether any of them were subject to the attorney-
client privilege . The requested documents that
were not privileged , if any, should have been made
available to the Employer, assuming that other rel-
evant standards were met.
We find no basis for reversing the hearing offi-
cer's revocation of the request for the personal in-
dividual tax records of the Petitioner's president.
Although, as the Employer correctly points out,
the Petitioner failed to file a written petition to
revoke that portion of the subpoena, as required by
Section 102 .66(c) of our Rules and Regulations, the
Employer has not shown that it was in any way
prejudiced by the hearing officer's ruling. Thus,
the petition to revoke was amended orally at the
hearing to include the request for the Petitioner's
president 's personal individual tax records , and the
Employer had an opportunity to argue against the
amendment.' Furthermore , in view of the Employ-
er's statement at the hearing that the purpose of
this request was to determine whether Campbell
received money from Local 25, such information
may have been "obtainable from some other source
that is more convenient [and] less burdensome,"8
that is, from Local 25.
Finally , although as noted above we are granting
the petitions to revoke in their entirety, we do not
agree with the hearing officer's rulings regarding
the period of time properly covered by the subpoe-
na served on Local 25 's president . The Employer
requested documents and other records covering
the period from 1 January 1984 to 11 February
1985 . Local 25's petition to revoke sought the rev-
ocation of the subpoena insofar as the requested
items related to 1984 . The hearing officer limited
the period from 1 November 1984 to 11 February
1985 because 1 November 1984 was the date on
which the Employer first notified Local 25 of its
intention to withdraw recognition . Contrary to the
hearing officer, we believe that the Employer was
entitled to seek evidence from the period preceding
the Employer's notification. Thus, the Board's de-
cision in Wells Fargo Corp., 270 NLRB 787 (1984),
affd. 755 F.2d 5 (2d Cir. 1985), in which the Board
first held that an employer may withdraw recogni-
tion from a so-called nonguard union when its col-
lective-bargaining agreement expires, was issued on
18 May 1984 . The Employer was entitled to seek
information regarding any actions Local 25 may
have taken in response to that decision to the
extent that those actions relate to the Petitioner's
status.9 Accordingly, on remand, the Employer
may subpoena appropriate documents covering the
relevant period preceding 1 November 1984.
Since there is a possibility that the Employer
was denied an opportunity to obtain evidence rele-
vant to the issue of the Petitioner 's eligibility to
become the unit employees' bargaining representa-
tive due to the hearing officer's ruling relating to
attorney-client privilege and the appropriate time
period covered by certain parts of the subpoena,
we will remand this proceeding to the Regional
Director for further appropriate action. On
remand , the Employer may obtain new subpoenas
for documents that may have been excluded im-
properly because of those rulings by the hearing
officer . Furthermore , the Employer may include in
its subpoenas requests for other documents that
properly are obtainable under the principles set
forth in this decision.
ORDER
It is ordered that the matter is remanded to the
Regional Director for Region 1 for further appro-
priate action.
8 We note that the Employer introduced into evidence commumca-
' We also note that Federal Rules of Civil Procedure 26(bXl ) permits bons between the International Brotherhood of Teamsters and Local 25
a court to limit discovery "upon its own initiative." that discussed the Wells Fargo decision and that were written before 1
8 Fed. R. Civ P. 26(bXl) November 1984.