Kinney v. Chicago Tribune Co.

Kinney v. Chicago Tribune Co.

Opinion

MEMORANDUM DECISION

ELAINE E. BUCKLO, UNITED STATES MAGISTRATE

Respondent Chicago Tribune Company has moved for sanctions against petitioner Elizabeth A. Kinney, Regional Director for and on behalf of the National Labor Relations Board on the ground that petitioner has failed to comply with an order of Judge Leinenweber dated July 12, 1989. For the reasons set forth herein, the motion for sanctions is denied. However, petitioner shall produce certain documents and testimony as set forth herein.

On May 12, 1989, petitioner filed this action seeking an injunction pursuant to section 10(j) of the National Labor Relations Act, pending final decision by the National Labor Relations Board of a complaint against respondent filed in 1986. That complaint, as amended in 1988, among other things, charges that respondent committed an unfair labor practice in violation of section 8(a)(1) and (3) of the National Labor Relations Act by refusing to recall striking employees who had made an unconditional offer to return to work, despite resignations or terminations of employment at least 46 replacement workers, thus discriminating against union workers and discouraging union membership.  [*2]   Petitioner's request for injunctive relief in this action alleges the preceding conduct and states that the conduct is ongoing and unless enjoined will result in frustration of public policy and the interests of the employees involved.

 ] 29 U.S.C. § 160(j) provides federal courts with jurisdiction to grant to the National Labor Relations Board, upon the filing of a petition such as in the present case and notice to the respondent, "such temporary relief or restraining order as [the court] deems just and proper." In deciding whether an injunction is appropriate, the court must determine whether "the Board has reasonable cause to believe the act has been violated," and consider such traditional equitable factors as the public interest and need to preserve or restore the status quo.  Squillacote v. Local 248, Meat & Allied Food Workers, 534 F.2d 735, 744 (7th Cir. 1976). The evidence of "reasonable cause" need not be substantial. It is sufficient "'if there be any evidence which together with all the reasonable inferences that might be drawn therefrom supports a conclusion that there is a reasonable cause. . . .'" Squillacote v. Graphic Arts International Union, 540 F.2d 853,  [*3]  858 (7th Cir. 1976), quoting from Madden v. International Hod Carriers' etc. Union, 277 F.2d 688, 692 (7th Cir. 1960), cert. denied, 364 U.S. 863 (1960). In Squillacote v. Graphic Arts, the court also noted that the reasonable cause standard is satisfied "'if there is a showing of factual issues which must be resolved by the Board,'" quoting from Kennedy v. Sheet Metal Workers International Association, Local 108, 289 F.Supp. 69, 91 (C.D. Cal. 1968).

Against this background, the courts have concluded that ] a respondent in a section 10(j) proceeding is entitled to discovery "limited to the issues raised by the petition for an injunction. . . ." Madden v. Milk Wagon Drivers Union Local 753, 229 F.Supp. 490, 492 (N.D. Ill. 1964). Thus, a respondent is entitled to discover the facts upon which the Board will rely "to support its allegation [as set forth in the petition for relief] of reasonable cause to believe that a violation of the National Labor Relations Act has occurred." Id. at 493. However, because the court in a section 10(j) proceeding "may not resolve any questions of credibility or evidentiary conflict " broader discovery, although normally permitted  [*4]  under the Federal Rules of Civil Procedure, is not permitted because the discovery "would not benefit respondent, even if they reflected facts squarely opposed to petitioner's theory." Fusco v. Richard W. Kaase Baking Co., 205 F.Supp. 459, 464 (N.D. Ohio 1962). Under this rationale, courts have prohibited discovery of statements of witnesses not expected to be called at the hearing on the injunction. Id. They have also prohibited discovery of evidence "relating to the 'scope, conduct or extent of the preliminary investigation' that led up to the filing of the § 10(j) petition." Madden v. Milk Wagon Drivers Union Local 753, supra, 229 F.Supp. at 493, quoting from Madden v. International Hod Carriers' etc. Union, supra, 277 F.2d at 693. ] In the latter case, the Seventh Circuit held that the Board was not required to "produce for examination the files and records pertaining to the conduct" of its investigation, id., nor witnesses to testify concerning the same since the information sought was not relevant to the proceeding before the court.  Id. at 694. Similarly, discovery of statements by investigators, internal memoranda, and dissenting opinions as to whether  [*5]  to pursue a section 10(j) proceeding and the adequacy of an investigation have not been allowed. McLeod v. General Electric Company, 257 F.Supp. 690, 702 (S.D.N.Y. 1966).

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.