N.L.R.B. v. Line ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_________________________
No. 94-10837
(Summary Calendar)
_________________________
NATIONAL LABOR RELATIONS BOARD,
Plaintiff-Appellee,
versus
RONNY LINE,
Defendant-Appellant.
____________________________________________________
Appeal from United States District Court
for the Northern District of Texas
(4:94-MC-25-Y)
__________________________________________________
(March 8, 1995)
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:*
Ronnie Line appeals the judgment of the district court
enforcing a subpoena duces tecum issued by the National Labor
Relations Board against him. For the following reasons, the
judgment of the district court is affirmed.
BACKGROUND
Ronnie Line is President of the Oklahoma Fixtures Company
("Oklahoma Fixtures"). Oklahoma Fixtures is an Oklahoma
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.
"Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1
corporation engaged in the manufacture of fixtures for retail
stores. Oklahoma Fixtures also performs the installation of these
fixtures in various states, including Texas. In 1975, Oklahoma
Fixtures allegedly entered into a collective bargaining agreement
with the Carpenters District Council of North Central Texas
("Union"). This agreement related to work being performed by
Oklahoma Fixtures in the North Texas area.
In 1987, Oklahoma Fixtures is believed to have created
Oklahoma Installation, Inc. ("Oklahoma Installations"), as a non-
union entity engaged in the installation of Oklahoma Fixtures
products. Early in 1993, the Union became aware that Oklahoma
Installations was performing work in the North Texas area. The
Union filed an unfair labor practice charge with the National Labor
Relations Board ("NLRB"). The NLRB issued a subpoena for
information about the existence of the collective bargaining
relationship between Oklahoma Fixtures and the Union and
information about the relationship between the Oklahoma Fixtures
and Oklahoma Installations. The subpoena duces tecum requested
that Line, as President of Oklahoma Fixtures, produce and furnish
the information.
Line did not comply with the subpoena and the NLRB filed an
application to enforce the subpoena in the Northern District of
Texas. The district court granted the motion finding that the
subpoena was properly issued and that it was not overly broad.
Line appeals the judgment of the district court.
DISCUSSION
I. ABSENCE OF JURISDICTION ARGUMENT
Line contends that the district court did not have
jurisdiction to enforce the subpoena.1 Jurisdiction to enforce a
subpoena of the NLRB is governed by 29 U.S.C. § 161(2) which in
pertinent part states:
(2) Court aid in compelling production of evidence and
attendance of witnesses. In case of contumacy or refusal
to obey a subpoena issued to any person, any district
court of the United States or the United States courts of
any Territory or possession, within the jurisdiction of
which the inquiry is carried on or within the
jurisdiction of which said person guilty of contumacy or
refusal to obey is found or resides or transacts business
. . . . [emphasis ours]
Line argues that the jurisdiction of inquiry in 29 U.S.C. § 161(2)
is the location of the subject of the subpoena. He argues that
since he, as the subject of the subpoena, is located in the state
of Oklahoma, the proper jurisdiction of this enforcement action is
in Oklahoma. Line cites no authority for this proposition and we
have found none. We, however, have found contrary authority.
In F.T.C. v. Jim Walter Corp., 651 F.2d 251 (5th Cir. 1981),
the Dallas Regional Officer of the Federal Trade Commission ("FTC")
had issued a subpoena to the Jim Walter Corporation for records
1
We note that we also have jurisdiction over the district
court judgment. A judgment that disposes of all live claims is an
appealable final judgment. Moody v. Seaside Lanes, 825 F.2d 81, 85
(5th Cir. 1987). In this case, the only claim before the district
court was the NLRB's enforcement action-- which the district court
adjudicated. Since all claims have been disposed of by the
district court, its judgment is final and appealable. See 28
U.S.C. § 1291.
3
needed in an investigation it had undertaken. The defendant
refused to supply the information and the FTC went to the district
court in the Northern District of Texas to enforce the subpoena.
The FTC relied on the following statutory authority:
Any of the district courts of the United States within
the jurisdiction of which such inquiry is carried on may,
in case of contumacy or refusal to obey a subpoena issued
to any person, partnership, or corporation, issue an
order requiring such person, partnership, or corporation
to appear before the commission, or to produce
documentary evidence if so ordered, or to give evidence
touching the matter in question; and any failure to obey
such order of the court may be punished by such court as
a contempt thereof.
15 U.S.C. § 49. The defendant's home base was in Florida, but one
of its subsidiaries had an office in the Northern District of
Texas. The defendant argued that the "jurisdiction of inquiry"
should be in Florida since that is where the corporate headquarters
was located. This Court rejected the argument. It stated that
"the statutory term 'inquiry' refers to the entire investigation
not just that portion of it involving the party subpoenaed." Id.
at 254. Because the FTC's inquiry was being carried on in the
Northern District of Texas, we found that jurisdiction was proper.
Id.
The subpoena enforcement statutes in Jim Walter Corp. and in
this case are similarly worded and have the same purpose. We
therefore hold that the place of inquiry in 29 U.S.C. § 161(2) is
the jurisdiction of the underlying NLRB investigation. In this
case, the NLRB's investigation is being undertaken in the Northern
District of Texas. Thus, the district court, being located in the
Northern District of Texas, had jurisdiction.
4
Line argues that the court in Jim Walter Corp. was not
presented the arguments that the subpoena itself defined the place
of inquiry and he is correct. However, in Jim Walter Corp., this
Court had to define the place of inquiry for 15 U.S.C. § 49. It is
this definition that we find applicable to this case. We therefore
find this argument to be without merit.
II. IMPROPERLY NAMED ARGUMENT
Line also argues that the subpoena was issued against him
personally and not against the corporation. After examining the
subpoena issued by the NLRB, we find that the subpoena was issued
against Line in his official capacity as President of Oklahoma
Fixtures Co. The subpoena was addressed to "Ronny Line, President"
and was sent to Oklahoma Fixtures' address. The subpoena refers to
the underlying labor relations case. An attachment to the subpoena
asks Line to supply company documents. Clearly, the subpoena was
served against Ronnie Line as President of Oklahoma Fixtures.
In Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55
L. Ed. 2d 771 (1910), the Supreme Court stated that there were two
ways to obtain documents from a corporation, one could subpoena the
documents from the corporation or subpoena the documents from the
corporate officer who has custody of the documents. Id. at 375; 31
S. Ct. 542. Line, as President of Oklahoma Fixtures, would
presumedly have custody and control of the documents. We therefore
find this contention to be without merit.
III. IMPROPER VENUE ARGUMENT
Line contends that the subpoena enforcement action was filed
5
in the wrong venue. We find this argument to be without merit.
The definition of jurisdiction in 29 U.S.C. § 161(2) refers to any
"district court." Venue is necessarily defined as the appropriate
district court to file an action. See 28 U.S.C. § 1391(naming the
appropriate district courts where venue would be correct). Where
29 U.S.C. § 161(3) defines jurisdiction in a specific district
court, it is also specifying venue.
Every court that has addressed the subpoena enforcement
provisions for other federal agencies with statutes worded
similarly to 29 U.S.C. § 161 has concluded that venue and
jurisdiction are synonymous for these statutes. See e.g., FTC v.
Cockrell, 431 F. Supp. 558, 560 (D.D.C. 1977); SEC v. Smith, 1992 WL
67832 at 7 (N.D. Ill. 1992); United States v. Wilfred American
Corp., 1987 WL 10501 at 11 (D.D.C. 1987)(Department of Education
subpoena); United States v. Tesoro Petroleum Corp., 503 F. Supp.
868, 873 (D.D.C. 1980)(considering the Department of Energy's venue
choice to be identical to jurisdiction); see also FTC v. Jim Walter
Corp., 651 F.2d 251 (5th Cir. 1981)(considered whether jurisdiction
and venue was appropriate without distinguishing between them).
Because we have already held that jurisdiction was proper, venue is
also proper.
Line argues that the general venue requirements of 28 U.S.C.
§ 1391 determines the proper venue. We disagree. The provisions
of 28 U.S.C. § 1391 apply "except as otherwise provided by law."
See 29 U.S.C. § 1391(a) & (b). "[W]here Congress has dealt with a
particular venue problem . . . broader language in a general statue
6
will not overcome this even though literally applicable." Bruns,
Nordeman & Co. v. American National Bank & Trust Co., 394 F.2d 300,
303 (2nd Cir.) cert. denied, 393 U.S. 885, 89 S. Ct. 21 L.E.2d 125
(1968); see also Stonite Products Co. v. LLoyd Co., 315 U.S. 561,
54-567, 62 S. Ct. 780, 781-83, 86 L. Ed. 1026 (1942). In this case,
Congress created a specific venue requirement for NLRB enforcement
actions in enacting 29 U.S.C. § 161. We therefore hold that the
general venue requirements of 28 U.S.C. § 1391 are not applicable
in NLRB venue enforcement actions.
IV. UNENFORCEABLE SUBPOENA ARGUMENT
Line contends that the subpoena is unenforceable because: 1)
the subpoena is overly broad in the number of documents it seeks
because the statute of limitations relating to unfair labor charges
is six months and the subpoena seeks documents from five years ago;
and 2) there is no collective bargaining agreement. A subpoena
issued by an administrative agency may be enforced where the
investigation is within the authority of the agency, the demand is
not too indefinite, and the information sought is reasonably
relevant to the agency's investigation. United States v. Morton
Salt Co., 338 U.S. 632, 652-53, 70 S. Ct. 357, 369, 94 L. Ed. 401
(1950).
After examining the subpoena, we find that the documents are
relevant to the NLRB's investigation despite their five year reach.
The documents sought in the subpoena seek to establish the
existence of a collective bargaining agreement and whether Oklahoma
fixtures has established a non-union company to divert work away
7
from the unionized company. In regard to Line's argument
concerning the existence of a collective bargaining agreement, such
an argument goes to the substance of the complaint. As
acknowledged by Line, a party may not interpose a defense of an
underlying unfair labor practice charge in a subpoena enforcement
action. D.G. Bland Lumber Co. v. NLRB, 177 F.2d 555, 557-58 (5th
Cir. 1949); NLRB v. Dutch Boy, Inc., 606 F.2d 929, 933 (10th Cir.
1979). We therefore find this contention is without merit.
CONCLUSION
Because this subpoena enforcement action was filed in the same
district as the NLRB's inquiry, both jurisdiction and venue are
proper. The subpoena is also not overly broad. The judgment of
the district court enforcing the subpoena is AFFIRMED.
8