## Facts

- Newark Mailers’ Union Local 11 sought to represent circulation-department employees of *The Daily Advance* newspaper, then owned by Union Building and Investment Company (UBI).
- After UBI declined recognition, the union petitioned for an election, and on May 28, 1974 the union and UBI executed a consent-election agreement at a meeting attended by NLRB employee George H. Abrams.
- The agreement described the unit as “all circulation department employees, including drivers.”
- The election occurred on June 21, 1974. The unchallenged ballots showed the union trailing 12–10.
- The employer challenged five ballots cast by “motor route carriers,” contending they were independent contractors and therefore outside the stipulated unit.
- After extended proceedings, the NLRB rejected the challenges, opened the five ballots, and the final tally favored the union 15–12. The NLRB certified the union on September 7, 1976.
- Between the election and certification, UBI changed its name to Drukker Communications, Inc. and transferred the newspaper’s assets and liabilities to a wholly owned subsidiary, The Daily Advance, Inc.; the record did not indicate the change was tied to union activity.
- Following certification, Drukker and its subsidiary refused to bargain. The NLRB issued an unfair labor practice complaint alleging violations of NLRA § 8(a)(1) and § 8(a)(5).
- In the unfair labor practice case, Drukker asserted that, at the May 28 meeting, the parties had an oral understanding (in Abrams’s presence) that “all circulation department employees, including drivers” did not include motor route carriers.
- Drukker subpoenaed Abrams to testify about what was said at that meeting and at the election. The administrative law judge quashed the subpoena and denied a motion to compel Abrams’s testimony.
- The NLRB found a refusal-to-bargain violation and sought enforcement; Drukker petitioned for review in the D.C. Circuit.

## Issues

1. Whether the NLRB could lawfully block testimony from its own employee (Abrams) when the employer claimed the testimony was uniquely available and necessary to show the parties’ understanding of an arguably ambiguous consent-election stipulation.
2. Whether excluding that testimony deprived the employer of a fair opportunity to litigate its defense to the refusal-to-bargain charge tied to the certification.
3. What disposition was appropriate for the Board’s bargaining order given the evidentiary ruling.

## Decision

- The court denied the NLRB’s cross-application for enforcement and remanded the case for further proceedings.
- The court held the Board should have allowed the subpoena for Abrams because his testimony could bear directly on the meaning the parties attributed to the stipulation’s unit language.
- The court rejected a broad, categorical refusal to permit Board-agent testimony based only on agency policy concerns where the requested testimony was material and not reasonably obtainable elsewhere.

## Legal Principles

- The NLRB does not have an automatic right to withhold testimony of its employees in Board proceedings when that testimony is material and a party cannot fairly present its case without it.
- When a party seeks testimony from an NLRB agent about statements made in the agent’s presence during a consent-election agreement process, the need for the evidence must be weighed against the agency’s asserted institutional concerns.
- An asserted oral understanding may be considered where it is offered to clarify the parties’ meaning of ambiguous stipulation language, rather than to contradict the written terms as such.
- If an evidentiary ruling blocks a party from presenting proof on a contested, outcome-affecting point in an unfair labor practice proceeding, the proper remedy may be denial of enforcement and remand for further development of the record.

## Conclusion

The D.C. Circuit refused to enforce the NLRB’s bargaining order and sent the case back because the Board improperly prevented Drukker from subpoenaing an NLRB field agent whose testimony could determine how the parties understood the consent-election unit description and, in turn, whether counting the challenged motor-route-carrier ballots was proper.


Drukker Communications, Inc. v. NLRB, 700 F.2d 727 (1983)