Drukker Communications, Inc. v. NLRB

In Drukker Communications, Inc. v. NLRB, 700 F.2d 727 (D.C.Cir.1983), the parties had signed a stipulation that "all circulation department employees, including drivers" were to be included in a unit to vote on union representation. After the election, the company challenged several ballots on the basis that the parties had orally agreed, before a Board agent, that this phrase was not to include "motor route carriers." The administrative law judge who considered the issue, however, refused to allow the company to subpoena the Board agent to testify regarding the alleged oral understanding of the disputed phrase. The rationale for the denial of the subpoena was not based on the Norris-Thermador rule, but stemmed from a fear that, if the Board agent was required to testify, the future effectiveness of Board agents in resolving disputes might be seriously impaired due to inhibitions caused by the parties' concerns that the agent may later testify against their interests. 700 F.2d at 731. The court, however, concluded that the Board should have issued the subpoena, reasoning that the parties' need for the evidence outweighed any potential harm to the future effectiveness of Board agents. Id. at 731-34. In so ruling, the court specifically noted that "the nature of the alleged oral agreement is fully consistent with the language of the stipulation" since the agreement concerned only the interpretation of the ambiguous term; that is, whether "all circulation department employees" included "motor route carriers." Id. at 732. In particular, the court stated that "petitioner is not urging an agreement which contradicts, or even makes an exception to, the language of the stipulation, except as that language has been given legal content (contrary to the views of the Regional Director) by subsequent Board decision." Id.