wine.

rane

\

2001. The instant motions to quash, filed by Hayes, Midwest, Phillips, and Scheck, seek to block
the production of this information, as it purportedly is irrelevant and falls outside the scope of the

§ 160(/) proceeding.

I. Discussion

Section 160(/) instructs the district court to conduct two, albeit somewhat overlapping,
inquiries before granting a petitioner temporary injunctive relief. Kinney v. Int'l Union of
Operating Eng'rs, Local 150, 994 F.2d 1271, 1278 & n.9 (7th Cir. 1993); Kinney v. Pioneer
Press, 881 F.2d 485, 490-91 (7th Cir. 1989); Kobell v. Reid Plastics, Inc., 136 F.R.D. 575, 579
(W.D. Pa. 1991). Initially, the court must determine whether the petitioner properly filed the
petition for injunctive relief—i.c., whether the petitioner had reasonable cause to believe that the
respondent engaged in an unfair labor practice as defined by 29 U.S.C. § 158. Int'l Union of
Operating Eng'rs, Local 150, 994 F.2d at 1278 & n.9; Pioneer Press, 881 F.2d at 490. Next, the
court must determine whether injunctive relief is "just and proper." Jd.

Regardless of the inquiry, the statute makes it clear that the court must provide all of the
parties to the proceeding, including the charging party, an opportunity to present "any relevant
testimony." 29 U.S.C. § 160(J). In terms of discovery for the parties, this fundamental
proposition, coupled with the principles of the Federal Rules of Civil Procedure, calls for an
opportunity to ascertain and obtain any relevant information. Madden v. Int'l Hod Carriers’
Bldg. & Common Laborers' Union of Am. Local No. 41, 277 F.2d 688, 690 (7th Cir. 1960);
Fusco v. Richard W. Kaase Baking Co., 205 F. Supp. 459, 462-63 (N.D. Ohio 1962), Relevant

information is information that tends to prove or disprove an alleged fact. Discoverable

-4-


sateen eenmmerned SENET A sememetecmernie inal

motions to quash the subpoenas. Any issues relating to confidentiality, privilege, etc., will be

addressed in open court on October 19, 2001.

ENTER ORDER:

7 Leake C Che

MARTIN C. ASHMAN
Dated: October 4, 2001. United States Magistrate Judge



If § 160(/) instructed this Court to make a decision on the merits as to Roth's allegation of
reasonable cause, then our decision would certainly be in Local 15's favor. But as the
subpoenaed businesses point out, this Court's limited role with respect to examining Roth's basis
for filing the petition—i.e., determining whether Roth had reasonable cause to file the
petition—necessarily affects the type of discovery permitted in this § 160(2) proceeding. The
statutory standard of reasonable cause is satisfied if disputed factual issues could be resolved by
the NLRB in favor of the petitioner and the petitioner's legal theory is substantial and not
frivolous. Int'l Union of Operating Eng'rs, Local 150, 994 F.2d at 1278; Squillacote v. Graphic
Arts Int'l Union, 540 F.2d 853, 858 (7th Cir. 1976) (quoting Hirsch v. Bldg. & Constr. Trades
Council of Phila. & Vicinity, 530 F.2d 298, 302 (3d Cir. 1976)). In determining whether this low
threshold is overcome, all inferences that can be fairly drawn from the facts are drawn in the
petitioner's favor, and the benefit of the doubt goes toward sustaining the petitioner's legal theory,
however novel it may be. Graphic Arts Int'l Union, 540 F.2d at 858.

In light of these principles, at least two courts have blocked third-party discovery by the
respondent where the third party was not testifying on behalf of the petitioner. In Richard W.
Kaase Baking Co., the court refused to allow the respondent to obtain statements from third
parties who were not to be called as witnesses by the petitioner because such statements would
only result in a conflict in the evidence and the court could not resolve the conflict in the
evidence. 205 F. Supp. at 464. Hence, the court concluded that the statements would not benefit
the respondent in any way. Similarly, in San Francisco-Oakland Newspaper Guild v. Kennedy,
the Ninth Circuit Court of Appeals affirmed the district court's decision to deny the respondent's

request for discovery from third parties to establish a defense because the evidence "would at

-6-


information, generally speaking, is relevant information that is not subject to any privilege.
Fed. R. Civ. P. 26(b)(1).

The first matter we address-——whether the information that Local 15 seeks is relevant to
the instant § 160()) proceeding—received little attention in the parties’ briefs. By way of
introduction, the courts have held that information pertaining to "the issues raised by the petition"
is relevant for purposes of a § 160(/) proceeding. Kinney v. Chi. Tribune Co., No. 89 C 3829,
1989 WL 91844, at *1 (NLD. Ill. Aug. 7, 1989) (quoting Madden v. Milk Wagon Drivers Union
Local 753, 229 F. Supp. 490, 492 (N.D. Ill. 1964)). It is axiomatic that this includes the facts
upon which the petitioner will rely to support his allegation of reasonable cause to believe that an
unfair labor practice had occurred. Jd. For reasons too clear, it must also include the facts upon
which the respondent will rely to establish a defense to the petitioner's allegation of reasonable
cause, wherever those facts may be found. Accordingly, we disagree with Midwest's conclusory
statement that the discovery sought by Local 15 is "wholly unrelated to the issues raised in
the . . . petition." (Midwest's Mot. Quash Resp't's Subpoena at 4.)

Moving on, we turn to the matter of whether the information that Local 15 seeks is
discoverable to counter Roth's allegation of reasonable cause. The parties agree that the facts
upon which Roth will rely to support his allegation of reasonable cause are fully discoverable by
Local 15, as all of the case law points in this direction. See, e.g., Chi. Tribune Co., 1989 WL
91844, at *1; Milk Wagon Drivers Union Local 753, 229 F. Supp. at 492. The matter in dispute
involves the fact that Local 15 is attempting to ascertain and obtain facts from third parties upon
which Roth will not rely to support his allegation of reasonable cause, but upon which Local 15

intends to rely to establish its defense to Roth's allegation of reasonable cause.

-5-


strength and merits of the petitioner's case must be performed, as in the typical injunction case.
Pioneer Press, 881 F.2d at 491 ("Grave harm times low likelihood of success may not add up to
a conclusion that [injunctive] relief is just and proper.""),

For that reason, we think that Local 15 should be allowed to depose and obtain
documents from Hayes, Midwest, Phillips, and Scheck. An injunction under § 160(/) is an
extraordinary remedy and represents a very far-reaching power. Int'l Union of Operating Eng'rs,
Local 150, 994 F.2d at 1277 ("It is an extraordinary tool because it injects the legal system into
disputes before a full airing of the facts and a careful consideration of the law, and mistakes can
be costly.") To arrive at the decision to use this power and grant this remedy, we must have a
true understanding about the nature and merits of the case, which we think can only be obtained

after considering relevant information from both sides to the dispute.°

Til. Conclusion

For the reasons stated, this Court denies Hayes's, Midwest's, Phillip's, and Scheck's

° Briefly, the cases cited by the subpoenaed businesses—San Francisco-Oakland
Newspaper Guild, 412 F.2d at 546; Reid Plastics, Inc., 136 F.R.D. at 579-80; Chicago Tribune
Co., 1989 WL 91844, at *1; Milk Wagon Drivers Union Local 753, 229 F. Supp. at 492-93; and
Richard W. Kaase Baking Co., 205 F. Supp. at 464—are inapposite on this matter as none of the
cases discuss permissible discovery from a third party who was not to be called as a witness by
the petitioner in relation to the "just and proper" inquiry.

-8-


bite Order Form 4597)
United States District Court, Northern District of Illinois
Name of Assigned Judge i Sitting Judge if Other ‘
or Magistrate Judge Blanche Manning than Assigned Judge Martin C. Ashman
CASE NUMBER 01 C 6702 DATE 10/4/2001
CASE Harvey Roth vs. Local 15, International Brotherhood
TITLE
Lin the following box (a) indicate the party fing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) QO Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due_ . Reply to answer brief due
(4) Oo Ruling/Hearing on __ set for _ at
() oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference{held/continued to] [set for/re-set for] on set for at .
(7) o Trial[set for/re-set for] on _ at
(8) im) [Bench/Jury trial) [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4¢m) OGeneralRule21 0 FRCP41(a)(1) CI FRCP41(a)(2).
ao [Other docket entry] Enter memorandum opinion and order. Hayes’s, Midwest’s, Phillip’s, and
Scheck’s motions to quash subpoenas [18-1], [17-1], [12-1], [11-1], [9-1] are denied. Any issues relating
to confidentiality, privilege, etc., will be addressed in open court on October 19, 2001.
di) of (For further detail see order attached to the original minute order.]
No notices required, advised in open court.
7
No notices required. umber of notices
oY | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.
VU | Copy to judge/magistatejudges
courtroom
Is deputy’s
initials
Date/time received in
central Clerk’s Office nailing deputy initials



Copies have been mailed to:

DENISE R. JACKSON-RILEY, Esq.
National Labor Relations Board
Region 13

200 West Adams Street

Suite 800

Chicago, IL 60606

Attorney for Petitioner

DANIEL V. KINSELLA, Esq.
Rooks, Pitts and Poust

10 South Wacker Drive

Suite 2300

Chicago, IL 60606

Attorney for Movant, Phillips Getschow
Company

P. KEVIN CONNELLY, Esq.
PATRICK V. MELFI, Esq.
Connelly Sheehan Moran

150 South Wacker Drive
Suite 1600

Chicago, IL 60606

Attorneys for Movant, Hayes Mechanical

1 ER EE ete cement

CHRISTOPHER T. HEXTER, Esq.
Schuchat, Cook & Werner

1221 Locust Street

2nd Floor

St. Louis, MO 63103-2364

Attorney for Respondent

ALLEN E. LAPIDUS, Esq.

Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street

Suite 2600

Chicago, IL 60601-1003

Attorney for Movant, Scheck Mechanical
Corporation

LISA A. LOPATKA, Esq.
THOMAS KOUTSOUVAS, Esq.
Franczek Sullivan, P.C.

300 South Wacker Drive

Suite 3400

Chicago, IL 60606

Attorneys for Movant, Midwest Generation,
EME, LLC


best have only created a conflict in the evidence and raised credibility issues which . . . could
only be resolved by the Board." 412 F.2d 541, 546 (9th Cir. 1969). The reasoning of both cases,
which we find persuasive and applicable to this case, militates against a finding in Local 15's
favor.? To clarify, we do not mean to say that the subpoenaed information would be irrelevant to
the reasonable cause inquiry, only that the subpoenaed information could not benefit Local 15
considering our limited role in this aspect of the § 160()) proceeding, and the facts presented in
the case so far.

However, just as our role in the § 160(/) proceeding expands as we move to the "just and
proper" inquiry, so does our view of permissible discovery.’ See Int'l Union of Operating Eng'rs,
Local 150, 994 F.2d at 1278; Pioneer Press, 881 F.2d at 490-91. Section 160(D tells the court to
grant such relief as it deems "just and proper." 29 U.S.C. § 160(0). Employing the traditional
equity test, the court must assess whether the petitioner has a reasonable likelihood of success on
the merits, whether the petitioner has an adequate remedy at law, whether the petitioner would
suffer irreparable harm if the injunction did not issue, whether the threatened injury to the
petitioner outweighs the threatened harm an injunction would inflict on the respondent, and
whether the granting of a temporary injunction would serve the public interest. Int'l Union of
Operating Eng'rs, Local 150, 994 F.2d at 1275 (citing Faheem-El v. Klincar, 841 F.2d 712, 716

(7th Cir. 1988)). Significantly, as the preceding factors reveal, a searching inquiry into the

> We recognize that the court in Richard W. Kaase Baking Co. relied on the "good cause"
standard in old Rule 34 to arrive at its decision; nevertheless, the reasoning is still persuasive.
205 F. Supp. at 464.

* As none of the parties addressed this aspect of our role in the § 160(2) proceeding, we
raise the issue sua sponte.

-7-


15 picketed the union hall of Pipe Fitters' Union Local 597 in Chicago, Illinois, with signs stating
"Jim Buchanan
Turning Proud Local 597 Pipefitters into SCABS
Crossing Local 15, IBEW's picket lines at Midwest Generation."
(Pet. Temporary Inj. at 3.) Picketing continued on August 7 and 15.

On August 20, 2001, Hayes, Phillips, and Scheck, acting through the Mechanical
Contractors Association,' filed a charge with the NLRB against Local 15 alleging that Local 15's
picketing activities at the union hall constituted an unfair labor practice. After conducting an
investigation into the merits of the charge, Roth, as Acting Regional Director of the NLRB,
determined that he had reasonable cause to believe that Local 15's picketing activities at the
union half constituted an unfair labor practice. Consequently, on August 28, 2001, Roth filed a
Petition for Temporary Injunction in federal court as required by 29 U.S.C. § 160(/).

Local 15 answered the petition on September 19, 2001, with several denials. It also
asserted a defense based on the ally doctrine under the belief that Hayes, Phillips, and Scheck, by
virtue of Pipe Fitters’ Union Local 597's referrals, had performed struck work at Midwest.”

To develop its defense, Local 15 served subpoenas on Hayes, Midwest, Phillips, and

Scheck to obtain certain business information, namely, work contracts entered into between

Midwest and each of the other subpoenaed businesses from June 1, 2000, through September 10,

' Hayes, Phillips, and Scheck were members of this association.

? Asa general rule, 29 U.S.C. §§ 158(b)(4)(i)—(ii)(B) prohibits secondary boycotts—e.g.,
strikes or pickets by a labor organization against a neutral employer with whom the labor
organization has no legitimate dispute. A neutral employer may lose this protection, however, if
it becomes "allied" with the primary employer with whom the labor organization has a dispute.
One way for a neutral employer to become "allied" is by performing struck work—i.e., work that
it would not perform but for a strike. Boich Mining Co. v. NLRB, 955 F.2d 431, 434 (6th Cir.
1992).

-3-


Generally, Local 15 sought information on the business relationship between Midwest and each
of the other subpoenaed businesses.

Presently before this Court are Hayes's, Midwest's, Phillips's, and Scheck's motions to
quash the subpoenas on the grounds that Local 15 seeks information that is irrelevant and beyond
the scope of the § 160() proceeding. For the following reasons, this Court denies Hayes's,

Midwest's, Phillips's, and Scheck's motions to quash.

L Background

The events underlying the instant § 160(/) proceeding are an outgrowth of a labor dispute
between Local 15 and Midwest, which caused Local 15 to strike against Midwest. The strike
occurred from June 28, 2001, through August 31, 2001, at seven of Midwest's power stations,
and it affected a large number of Local 15 members who performed maintenance work at the
power stations.

During the course of the strike, Local 15 discovered information that led it to believe that
Pipe Fitters' Union Local 597 was referring its members to Hayes, Phillips, and Scheck to
perform work at Midwest that, but for the strike, Local 15's members would be performing. Asa
result, Local 15 appealed to Pipe Fitters' Union Local 597 to engage in a work stoppage at
Midwest.

The appeal must have fallen on deaf ears because Pipe Fitters' Union Local 597 did

nothing to interrupt work at Midwest. Taking a more direct approach, on August 1, 2001, Local


ee

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

HARVEY ROTH, acting Regional Director
of Region 13 of the NATIONAL LABOR
RELATIONS BOARD, for and on behalf
of the NATIONAL LABOR RELATIONS
BOARD,

Petitioner, Case No. 01 C 6702

v. Magistrate Judge

Martin C. Ashman &
by, “hy
» ot
&

LOCAL 15, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS,

SSS SS SS SS SH SH SH HS ED

Respondent.

MEMORANDUM OPINION AND ORDER

Harvey Roth, Acting Regional Director of Region 13 of the National Labor Relations
Board, filed a petition with this Court seeking to enjoin Local 15, International Brotherhood of
Electrical Workers, AFL-CIO, from picketing at the union hall of Pipe Fitters’ Local Union 597

pursuant to 29 U.S.C. § 160(/). Roth alleged that Local 15's picketing activities, which aimed to

induce or force members of Pipe Fitters' Local Union 597 to cease working at Midwest
Generation EME, LLC, violated 29 U.S.C. §§ 158(b)(4)()~Gii)(B).

To establish a defense to the charges in Roth's petition (through an apparently novel
application of the ally doctrine), Local 15 served subpoenas on four businesses—Hayes
Mechanical, Midwest, Phillips Getschow Company, and Scheck Mechanical

Corporation—commanding them to appear for a deposition and to produce certain documents.