*1 304 thoughts (or after employee’s
“[A]n signed a union card EQUAL thoughts) why as to he OPPORTUNI- EMPLOYMENT COMMISSION, Applicant-Appel- that card meant can thought he and what TY having action of lee, negative the overt ” Co.,& ... . Levi signed a card Strauss 732, (1968) (quoting Joy 734 172 N.L.R.B. CORPORATION, BAY SHIPBUILDING 1263, NLRB, N.L.R.B. en Silk Mills Respondent-Appellant. forced, (D.C.Cir.1950), cert. F.2d 732 71 S.Ct. L.Ed. No. 81-1328. 341 U.S. circumstances, (1951)). “to these Appeals, Court of United States subjective up proof in open avenues of Circuit. Seventh strong temptations create tent would Argued Sept. employees to assert a employers to induce ” Levi Strauss & retroactive disavowal.... Dec. Decided Co., 172 at 734. N.L.R.B. therefore,
We, that the Union had 36 find bargaining unit of em
valid cards in requires that the Un
ployers. Gissel Since majority support issuing before
ion attain order, enforce the
bargaining we cannot We
bargaining order at this time.13 re allowing purposes
mand the case any remaining
parties to consider cards
which were not below. Since considered findings
Wards did contest Board’s violat employees
that certain conduct of 8(a)(1) of the National Labor Section Act, with re
Relations the Board’s order
spect these should be enforced. violations is,
Therefore, part, denied
and, case re- part, enforced
manded for further consistent opinion.
with this majority sup- ing fair ... use of traditional 13. Since the Union does not have election question slight employee port, ... and that senti- we do not of whether remedies reach would, expressed through once cards the order should be denied enforcement be- ment balance, carry protected by bargaining cause Board be better did not out detailed Gissel, analysis Oaks, at Red 395 U.S. at mandated in order.” .633 possibility and did not establish “the erasing past practices and ensur- effects
306 *2 against discriminated her and ing by deny- of their sex women because other Bay’s depart- into electrical ing them access training/apprentice- ment and its electrical program. In June Keller’s ship designated by the charge was *3 “Early under EEOC’s special treatment Program” (App. Litigation Identification charges 31). program The “ELI” identifies expanded, litigation-oriented for suitable an covering discriminatory prac- investigation affecting par- “charging like tices those (EEOC Compliance Keller in this case ty,” later, at 12). About five weeks Manual § suggestion of the EEOC’s Milwaukee Office, her original Keller amended District charge allege Bay to aiso discriminated by them employees denying women against job “exped- into access classifications draftsman, iter, carpenters, painters, pipe- fitters, cleanup posi- outside crew labor hiring, job assign- in reference to tions Davis, Kuekthau, Buelow, B. Clifford ments, promotions” training, transfers and Goodland, Stover, Vergeront, Werner & original charge was served (App. The Wis., Milwaukee, respondent-appellant. for Bay July 1978 the amended on C., Washington, Flynn, E. Mark E. O. S. charge year a thereafter. C., applicant-appellee. D. for affidavit, De As EEOC stated Bay question 1979 the EEOC sent cember CUMMINGS, FAIR- Judge, Chief Before PELL, consisting twenty inquiries with naire CHILD, Judge, Circuit Senior Bay's employment practices.1 to respect Judge. Circuit questionnaire prompted was an ear The CUMMINGS, Judge. Chief ruling lier the court below that Op- Employment In July Equal 1980 the investigation then too incom EEOC’s (EEOC) applied to portunity Commission injunction. preliminary plete to warrant Bay requiring the district court for an order Corp., Bay Shipbuilding (Bay) obey a Shipbuilding Corporation to F.Supp. (E.D.Wis.1979). Bay refused to subpoena issued the EEOC duces tecum questionnaire. comply with Conse upon Bay on March served subpoena tecum was quently duces served granted The 6, 1980, Bay upon Bay directing March on appealed this subpoena to questionnaire by March respond to the granted stay pending We resolu- Court. 1980. The was authorized tion of the but now affirm. 709(a) of Title VII of the Civil Section Rights grants Act 1964 which security of a employer * * * right copy and the “access guard, According Marie Ann Keller. any person being investigated evidence of appli- accompanying affidavit the EEOC’s against that relates unlaw proceeded cation for enforcement of administrative * * * practices and is rele 26, 1978, employment subpoena, July filed a ful on Keller (42 investigation” charge under charge with the EEOC’s vant of discrimination 2000e-8(a)). Congress Milwaukee, Wisconsin, alleg- § District U.S.C. Office inquiries Appendix reproduced our A. give
amended Title VII to the EEOC the fendant’s motion to dismiss be denied “and investigatory powers contained in 29 U.S.C. an immediate be set on Plain- (42 2000e-9). By U.S.C. application § § tiff’s subpoena enforce- Congress granted amendment the district (App. 143). ment” reply filed a brief jurisdiction subpoenas courts to enforce August asking permission an file “upon application” by (29 the EEOC U.S.C. answer and response counterclaim in 161(2)). application of the EEOC. In the reply brief Bay also asserted that applica- day compliance On last with the tion did not state a claim because it did not subpoena, Bay mailed the petition EEOC a allege (1) “the was issued to revoke the upon based fifteen pursuant investigation within law- objections program, to the ELI the amend authority ful plaintiff;” (2) “the charge, questionnaire.2 and the On indefinite;” subpoena is (3) “the April 1980, the EEOC’s Milwaukee Dis requested information (App. relevant” *4 trict the petition Office denied but extend an August In 22 letter to the district ed subpoena the return date for the judge, urged the EEOC grant him to an 14, 1980, April March to In a hearing deny or the motion to fifteen-page expeditious document the EEOC’s “deter outright, dismiss days Bay with five for to carefully mination” answered Bay’s each of comply subpoena with the (App. 153). objections compliance with the (App. 74-88). later, About six February 12, months on granted the district 9, 1980, court the April
On EEOC’s Bay requested the application to enforce the general de- EEOC’s counsel to overrule the Mil- nied Bay’s motions to waukee District dismiss and to file an Bay’s pe- Office’s denial of (25 answer and 31,635). tition to revoke the counterclaim EDP subpoena. The If Bay by general comply was denied was ordered to the EEOC’s counsel with the sub- 20, 1980, poena May by but February request he further and its extended for a stay the return pending appeal date June this was denied. general “determination” the adopt- counsel In his decision and enforcing order ground ed each in used the District Office’s subpoena, Judge rejected Evans Bay’s con- prior denial (App. 121-122). On June application tention that the EEOC could not proposed a settlement Bay with a institute civil action it because was not a rejected which was on June result- “complaint” 7(a) within Rules 3 and of the ing 2,1980, July application to Federal Rules of Civil The Procedure. the district court enforcement of its court held 81(a)(3) applied that Rule in- subpoena. administrative stead, which states that the Rules not do July On moved dismiss the apply proceedings for the enforcement of application ground on the that it was not a subpoena a if provided by “otherwise stat- * * * pleading Rule 7(a) within by Federal ute or order of the court Rules of proceedings.” Civil Procedure3 and furthermore The court noted that rel- did not upon state a claim which relief evant require subpoena statute did not en- granted. could be This sup motion was to begin forcement with filing of a ported by suggesting a complaint brief if the “upon application” but rather by application dismissed, were not agency (19 161(2)). should be U.S.C. Even § complaint as treated a to which statutory could without deviation from the file 5, 1980, an On August Rules, answer. 81(a)(3) under Rule the court could EEOC filed its brief requesting de- have complaint ordered that a was unneces- Bay’s objections, unaccompanied provide a brief be shall one form of ‘‘[t]here affidavits, reproduced Appendix or B. action be known ‘civil civil action......A by filing complaint action is commenced a with 7(a) provides 3. Rule “[t]here shall be a the court.” * * * complaint answer; and an other [n]o ** pleading shall be allowed Rules 2 and to Enforce an EEOC An Action since no then held that The sary. May Be Subpoena Rules, Administrative no required under was complaint Begun “Upon Application." This not be allowed. answer 'would court, be- unfair, according to the district correctly The exercised district court subpoena, (1) objections Bay’s cause by dispensing paper with its discretion EEOC, its submissions contained in complaint and answer that formalities of court, (2) Bay al- already before Rules of required by be Federal would subpoena revocation had had two ready ordinary civil action. Civil Procedure (3) Keller’s hearings before noted, apply do not decision the Rules As its statutorily authorized charge was amended of adminis enforcement (4) the in- properly promulgated, provid “otherwise subpoenas when trative charges of Keller’s vestigation of the truth rules of statute was akin to discrimination employment pro the court in court or order of should and therefore discovery (Rule 81(a)(3)). applicable The ceedings” scope. be given broad jurisdiction the district granting statute judicial hearing court, 161(2), specifically pro court also held that U.S.C. “upon ap the EEOG had required begun vides that enforcement Bay’s attempts to revoke agency twice considered to the court.5 plication” by the judicial would papers opportunity had an to file delay proceedings.” Simi- “only further subpoena, contesting Bay’s request to file counterclaim larly, importance it is of much whether *5 bring further denied because it would was or papers captioned were “answer” delay. good to cannot in “motion dismiss.” rejected Bay’s objec The district court argue surprised it that faith that was subpoena, since it found that tions court, denying after its motion to district were requests made in dismiss, request to renew its also denied its burdensome,” “relevant, not specific, and caption. a When objections under different 29 therefore enforceable under U.S.C. and con- as here the defenses to enforcement 161(2).4 161(1) also decid and §§ only court has cern whether the district sufficiently the subpoena ed that was defi jurisdiction applicant has and whether statutory and within the EEOC’s nite fell claim, a a either an “answer” or stated requirements authority, meeting thus present to dismiss” serves to “motion v. Morton established in United States Salt 12(b)). In (Rule to addi- defenses the court 632, 357, 368, Co., 652, 338 70 S.Ct. 94 U.S. support its to the two briefs tion Finally, court- held that it L.Ed. 401. dismiss, sup- could have filed motion application itself to unnecessary for the was summary porting affidavits. The nature allege pre that it the Morton Salt satisfied proceeding of this sort requisites enforcement. acknowledged judicially as follows: been of valid granted Obviously, if the enforcement brought and we This which is a subpoenas, For the rea- issuance of stay pending a its resolution. case, require follow, mere incident were we now affirm. sons that noted, previously from the of the In further deviation strictures As these Sections made Procedure, hearings investigations 29 applicable of Civil U.S.C. Federal Rules to EEOC and 161(1) 161(2) pro- by that the courts have enforce- states § 42 2000e-9. Section § U.S.C. jurisdiction not to hold trial or be revoked ment vides shall judgment, simply only requires “to final but or to render a if it evidence “does * * * compliance requiring investigation” any an order” relate matter under issue not particulari- subpoena. with the “does not describe with sufficient ty” produced. to be Section evidence 161(2) provides for court enforcement disobeyed subpoenas “upon application” agency.
309
suit,
all of
of a civil
party
the formalities
should the
be enforced.
[agency]
University
administrative work
Pittsburgh,
487
might
subject
great delay.
1071,
often be
F.Supp.
(W.D.Pa.1980),
1077-1078
af
firmed,
983,
We
(3d
think
such was
the intention
643
1981),
986
Cir.
Congress,
clearly
denied, -U.S. -,
of the
and that this
certiorari
102 S.Ct.
362,
simple
indicated
the use
70
particular
L.Ed.2d 190. That
issue
unambiguous words with
de-
authoritatively
which it'
is now
settled so that a
proceeding.
scribed this
regarding
counterclaim
it would be unavail
ing, EEOC v.
Dry
Associated
Corp.,
Goods
Goodyear Tire & Rubber Co. v. National
817,
449 U.S.
101
66 L.Ed.2d
S.Ct.
762
Board,
Labor Relations
122 F.2d
(subpoenaed information may be released to
(6th
1941).6
event,
any
Cir.
Bay raised
charging parties pursuant
C.F.R.
objections
they
before the
1601.22); Burlington Northern,
Inc. v.
also
the record below
con
(7th
One
practice.
court has
filing
a motion
Thus Rule 6
local
counterclaim in order
provides
to contest
rules
release
that a motion shall be accom-
requested
charging
panied
affidavits,
information to the
as necessary
briefs and
6. The
at issue in
were
Board,
in a 1972
By
belonged
that amendment
subsequently
investigatory powers
amendment
to the National Labor
Goodyear
we have
made available to the EEOC
Congress obviously
&Tire
already
of 29
U.S.C.
Rubber
U.S.C.
twice
§
originally
Relations
2000e-9.
intend-
§
noted
161
garding general
prior interpretations
ers.
reprinted
ed the EEOC
Cf.
2141-2143
funding
Letter
[1972]
powers
needs).
from W. Brown to J.
(using
U.S.Code
of the Labor Board’s
to be construed in
Labor Board data re-
Cong.
costs to
&
Ad.News
light
project
Dent,
pow-
rejected the
general
his own
counsel
be-
judge
follow
shall
but that “[e]ach
affording of
respect
District Office Di-
practice
to the
cause the Milwaukee
with
sustained
“completely
This
and ac-
argument.”
rule
determination
oral
rector’s
Co.,
50 F.R.D.
Walston &
Butterman v.
contentions and
curately disputed [Bay’s]
rule
(E.D.Wis.1970),
comparable
and a
rules,
[sic],
applicable
set forth
status
Court
District
adopted by the United States
(App. 121). Accordingly,
law”
case
Illinois was
for the Northern District
rejected Bay’s
objec-
twice
fifteen
ex
by this Court in United States
sustained
subpoena
it had
after
been
tions
151, 153-154
Twomey,
538 F.2d
rel. Bibbs
opportunity
present
ob-
afforded
(7th
429 U.S.
certiorari
jections.
L.Ed.2d 551.
procedural op-
It is immaterial
rules is
by motion
great discretion afforded
sought
were
by Bay
available
portunities
regulating the form
when
appropriate
By
before
primarily
the EEOC.
U.S.C.
be
subpoena enforcement
opposition to
161(1),
Congress gave
pow-
the EEOC
§
cause,
and like
Goodyear
Tire
as decided
opinion”
in its
er to revoke a
“if
cases,
meant to be
subpoena enforcement is
requested
is not relevant or
evidence
summary proceeding.
particularity,
with
described
sufficient
Bay’s
process rights under
due
inquiry
providing
special
while
for the
no
abrogated
Amendment were not
Fifth
(29
enforcing
courts
U.S.C.
hold
the failure to
an adversarial
161(2);
supra).
see notes 4 and 5
Com-
First,
given
Bay was
for three reasons.
judicial scrutiny
bined with
afforded
application
ample opportunity
oppose
the EEOC
Judge Evans
assure that
did
fil
yet in its
to enforce the
clearly
investigatory
abuse
its broad
ings
merely
chose
contend
powers,
agency
Bay’s
the double
review
application
complaint
not a
process
objections
all the
re-
constituted
supposedly
under the
improper
therefore
by the
quired
Fifth Amendment.
Procedure,
Rules of Civil
and that
Federal
Finally,
denying
before
the motion to dis-
pre
three
application
allege
did not
enforcing
subpoena,
miss and
dis-
requisites mentioned in United States
objections
court
trict
reviewed all
Co.,
70 S.Ct.
Morton Salt
had it
Bay stated would have raised
been
357, 368,
strong
state Dress “to supra, 610 F.2d at allegations” charge. subpoenaed original made in the party unless comes charge of the “forward with facts 1979 amendment suggesting solely serve carried out with the EEOC’s pur- intended accordance poses purview ELI jurisdiction program, Although outside the discussed above. *8 issuing agency,” Bay charge of the the district court asserts that the amended “should, 11(2) in a adoption enforcement case § invalid because [like uniformly 985-986; uphold relevancy University 8. The courts v. of of F.2d at New EEOC subpoenas Mexico, 1296, seeking (10th EEOC F.2d information about 504 1299-1302 Cir. Boots, EEOC, specifically alleged 1974); discrimination not in Bell v. 418 F.2d Blue Inc. See, 355, charge. e.g., University (6th 1969). v. EEOC of Pitts 358 Cir. supra, 1075-1076, burgh, F.Supp. 487 at 643 312 re original charge alleged specific in acts of published program the ELI
of craft-training into fusing to allow women deals Register, program the Federal 1977, 1978, February programs December procedures and does with EEOC internal 1978, charge was May the amended par- rights obligations of not determine 11, 1979, Judge July properly Evans dated poli- the statements ties before it. Thus While vagueness defense. overruled the are ex- program the ELI cy contained in Co., Inc., 643 F.2d v. Dean Witter EEOC (5 publication requirements cepted from (9th 1980), Title VII Cir. states that 1334 Furthermore, since 553(b)(A)). U.S.C. § begin requires pleading specific investigation ex- scope has not of the discriminatory alleged each ning date for origi- permissible ceeded what is under is practice, only it court so to hold.10 “adversely charge, nal been event, distinguishable is any Dean Witter program with- by adoption affected” original charge allege spe because does 552(a)(1) and has no in 5 U.S.C. therefore § party the charging dates on which cific standing complain time to about at this discriminatory first believed activities non-publication. read, amendment, fairly effect took contends that the also back, up bringing allegations relates supposedly is over-broad because seeks 11, 1979, July continuing date and there concerning man information confidential after. But, agement employees. and executive as Barlow’s, Inc., v. Citing Marshall Mexico, University held in v. of New EEOC 307, 1816, 305, 436 U.S. 98 56 L.Ed.2d S.Ct. 1303, confidentiality supra, 504 is no F.2d at cases, Bay argues and two earlier noncompliance excuse for Title VII since only procure can from it information per imposes penalties criminal warrant, or, alternative, “by upon publicize sonnel who information obtained showing probable cause” administrative charges investigating in the course of 26). merit (Br. argument This without employment discrimination. 42 U.S.C. states federal because even Barlow’s that a 2000e-8(e).9 2000e-5(b), §§ (OSHA there) in agency’s entitlement * * * charge attacks next depend on spect “would not demon vague, original but amended strating probable that con cause believe charges exactly company set forth what exist on the ditions violation OSHA discriminatory practices are believed be 320, at premises.” 436 at 98 U.S. S.Ct. repetition against By origi women. purpose the whole Indeed charge, nal amendment shows wheth investigation determine charging party that the discrimina probable believed exists. er cause See Graniteville 32, tory practices EEOC, at time (4th existed both the v. 438 F.2d 36 Co. Cir. Powell, original paraphrase the amendment and the time of the To States v. 379 United 48, 51, 248, 251, charge continuing. 85 13 L.Ed.2d Since the U.S. 2000e-8(e) provides part: contrary, Employment 9. Section To the see General EEOC, 783, Enterprises, 783- Inc. v. 440 F.2d any employ- It shall be unlawful for officer or EEOC, (7th 1971); 784 Cir. Graniteville Co. v. any public ee of to make the Commission (4th 1971); 438 F.2d 37-39 Cir. Internation manner whatever information obtained Workers, Local al of Electrical Brotherhood pursuant authority the Commission to its EEOC, (3rd Union No. 5 v. 398 F.2d prior under this section to the institution of Service, 1968); Inc. v. Cir. New Orleans Public any proceeding subchapter under this involv- Brown, 1975); (5th 507 F.2d 162-164 Cir. ing such information. Southwest, EEOC, Sparton v. Inc. Assuming protects this Section informa- banc); (10th 1972) (en 1058-1060 Cir. only (see tion institution of until EEOC, Paper Corp. Bowaters Southern (1981)), Bay C.F.R. point 1601.11 could at (6th F.2d 799 certiorari protective under move for a order Rule 241, 27 246. See 91 S.Ct. L.Ed.2d 26(c) of Rules the Federal of Civil Procedure. Life also Occidental Insurance Co. University supra, Pittsburgh, See EEOC v. 372-373, 2447, 2457, 432 U.S. 97 S.Ct. F.Supp. at 1078. L.Ed.2d 402.
313 112, present any support we hold the EEOC need make no affidavits its conclu- showing probable suspect cause to sionary vio assertion to that effect. Similarly, Title employer lation of VII unless the rais in its motion dismiss and supporting question judicial es a en substantial briefs it did not demonstrate to the district subpoena forcement the administrative itwhy unduly would be burdened proc use of the subpoena. Judge would be abusive the court’s Therefore Evans was University justified ess. EEOC v. of New Mexi holding requests See made 1303; co, at supra, subpoena 504 F.2d Food Town in the not unduly burden- EEOC, Stores, Inc. (CCH) v. 25 EPD some. 31,489 18,958 (M.D.N.C.1980).
¶ at There denying a stay Shipbuilding, here. showing no such judge commented that had company urges too already “stalled off for one authority require year” (Record has no it to compile delays Item Further hoary point information. This already has should not be sanctioned. Therefore the correctly been rejected judgment affirmed, in other stay dissolved, is Service, cases. New Orleans Public Inc. v. and our mandate issue forthwith.12 Brown, 160, (5th 507 1975); 165 Cir. McLain, 1339, v.
Motorola
484 F.2d
1346
A
APPENDIX
(7th
denied,
1973),
Cir.
certiorari
416 U.S.
Supply
copy
1.
your
Reports
EEO-1
936,
1935,
94
40 L.Ed.2d
S.Ct.
period
present. Also,
1975 to the
identify
specific job positions
each
Finally, Bay opposes enforcement
the various broad
categories,
EEO-1
ground
of the
such
it is
operatives, technicians,
unduly
etc.
burdensome. An
argu
identical
ment
routinely
rejected
has
been
EEOC 2.
your
Submit
list of all
current em-
and related cases11 unless compliance would ployees
identify
by;
each
operation
threaten
respon
normal
of a
name,
a.
business;
dent’s
there has been no such
address,
b.
showing
respondent
here.
If a
lacks the
sex,
c.
necessary
respond
part
information
d. department,
a subpoena, of
it
course would be excused
pro
EEOC,
tanto. H.
&
Kessler
Co. v.
53
e.
job
title,
classification
330,
(N.D.Ga.1971),
F.R.D.
336
modified on
hire,
f.
date
grounds,
(5th
other
1973),
c. the date or inclusive dates of each advertisement. requirements, etc., entry ing, level state diploma any specializ- high or such school present, spec- period 1975 8. For the to training applicant must experience, or ify applications by the numbers of received position. in for said qualify have order mail from walk-ins for vacancies and Ques- mentioned in departments each of the training experience what and/or 4. State 8. tion Number progress necessary employee for the higher position within the same the next area from geographical Specify 9. job classification. conduct- recruiting hiring is your which following information on 5. Provide ed. organization sought your the vacancies applicant any use your company Does 10. January period hires for fill new so, applicants If are all process? screening present. are applicants If all screened? job job each classification a. title for deter- used to screened, criteria are what vacancy, for which there was a will be screened? applicants mine which b. the number of vacancies related to sex, qualifica- name, position and Include title, job each persons who determine person or tions of positions c. if were con- will applicants be screened. which professional sidered to or be skilled applications persons to all given 11. Are (i.e., requiring person hired not, attempt apply? If indicate who significant training have skills or title, job name and sex (identifying whom hired, when and not obtainable on the person) the determination is made for each job by in- incidental orientation or given applica- applicants as to which are struction), supply prepare copy or Specify tions which are not. what fac- supply description of each making tors such determi- are considered professional position. skilled or nations. vacancy 5(a) For each 6. listed Number copies or of docu- 12. statement Submit state: applicant ments which set forth methods of name, a. processing. should include but Information sex, b. to, at stage what be limited persons applied c. address of all who for hiring decisions hiring and whom vacancy, said are made. Under what circumstances why applicant d. the reason who filled required and interviews reference checks hired, vacancy and made? why applicants e. the reason all other Identify 13. each female that was em- hired, were not ployed positions Question named in copies applications f. submit of all period Number January above persons each of the identified in d and present. 1975 to the e above. Identify 14. training programs all con- positions formally Name advertised by your company January ducted from newspapers, magazines, journals, radio, job present, position for which television, of pamphlets, distribution or oth- they for, requisite conducted and period during er media 1975 to the get skills necessary training into such present; supply following for each in- programs. stance: magazine, newspaper, regard a. name of training pro- each With to the above used, recruiting or other grams, by name, source identify sex date entry, persons those gained entry into copy publish- b. each advertisement these programs January used, ed, pamphlet radio televi- or present. script, sion
B. The amendment was made without
authority of law and in
violation
job
For
positions
identified in
procedures authorized and intended
*11
Question
identify
Number 3
the foreman of
Congress, Title VII
the
and
Commission’s
Further,
department by
the
name and sex.
regulations.
example,
For
see
C.F.R.
has
hiring
indicate who
control over the
and
1601.7,
1601.6,
1601.11 and 1601.12.
§§
transferring
persons
of
the depart-
into
Program
C.
ELI
not
The
been
ments.
pursuant
promulgated
to the Administra-
all
Identify
employees
17.
transferred
Act,
ELI
tive Procedure
nor has the
Pro-
company
January
within the
from
1975 to
gram
promulgated
been
in a manner so
present, position
the
transferred from [and]
Respondent
as to afford
the minimal
position
into,
the
transferred
and the date
otherwise,
safeguards, due process and
such transfer was effectuated.
required
the
Constitution and the com-
If
of
questions
18.
the above
mon law.
have
before,
been answered
state when it was
Respondent
formally
2.
notified
answered,
answer,
provided
who
the
and
upon amendment
the charge
of
the
whom
EEOC the answer was made.
investigation
being
Commission’s
con-
19. Please make
per-
available for review
pursuant
program.
ducted
ELI
the
employees
sonnel records of all
employed in
3. The reasons for
the Commission’s
yard positions
January
skilled
from
1975 to
of
charge
amendment
have
been
Also,
present.
make
re-
available for
to,
disclosed
and
illegally
have been
with-
the personnel
view
employees
files
all
from, Respondent
held
in violation of Re-
all training
admitted in
apprenticeship
and
spondent’s
process rights.
due
programs
Shipbuilding
offered
Cor-
4. The
charge
vague;
amended
poration.
is
fur-
ther, the Commission has
refused
define
all
Supply
20.
bargaining agree-
collective
scope
purpose
investigation
of its
and
ments
Bay Shipbuilding
between
Corpora-
has, thus, jeopardized Respondent’s ability
tion and the unions
you
associated with
to defend itself.
example,
For
see EEOC
January
the present.
Compliance Manual
22.3.
charge
The
illegal
5.
amended
is
because
APPENDIX B
scope
it exceeds the
origi-
and intent of the
Further,
charge.
nal
investigation
and
subpoena requests
1. The
information
requested
permissi-
information
exceed the
allegedly
July 11,
related scope
ble
of an ELI investigation.
charge
amended
of discrimination. This
amendment,
substantially
which
expanded
charge
6. The amended
untimely.
is
scope
of the original charge, was initiat-
The
7.
is
authority
Commission without
agents
Commission
pur-
under the
require
compilation
of information
ported authority
(Early
Litiga-
the ELI
requested by the subpoena
may only
and
Identification) Program.
tion
subpoe-
The
require
production
specifically
identi-
therefore,
na,
illegal
following
is
for the
fied documents or
testimony
oral
of wit-
reasons:
nesses.
amendment,
A. The
procedure
fol-
request
The
unreasonably
burden-
amendment,
lowed in effectuating the
some, vexatious
oppressive
and
impossi-
investigation
and the
resulting from the
ble to comply
permit-
with within the time
amendment,
Respondent’s
violate
Fourth
ted.
Amendment,
law,
and Fifth
and common
9. The
requested
information
is irrele-
rights
law, equal
to due
protec-
vant and immaterial
beyond
scope
laws,
tion of
and administrative
original
charges.
amended
search
investigation pursuant
to au-
thority
aof warrant or as a
of good
result
The
seeks information for
and sufficient cause.
period
a time
which is barred from consid-
addressing
respondent’s
contention
in the
should be
nature
laches,
limitations,
statute of
eration
ordinary
pleadings,
rely
civil
delay in
bad faith and
the Commission’s
Gajewski,
ing upon
United States
herein.
conducting
investigation
(8th Cir.
cert.
F.2d 1088
requested,
the information
11. Some
1040, 90 S.Ct.
asked “for a preliminary when
nothing has been done.” days Thirteen la-
ter, the sent questionnaire to re-
spondent requesting voluminous informa-
tion, of which more later. For the first
time since the commencement of the inves-
tigation, respondent objected to providing requested
the. information. issuance of couple followed in a months, Application with the for Enforce- being ment on July filed America, UNITED STATES of *13 opinion The majority in referring to the Plaintiff-Appellee, summary pro- nature an enforcement ceeding sort, quotes Goodyear NLRB, Tire & Co. Rubber 122 F.2d at COOK, Defendant-Appellant. Donnie Lee there, 451. The however, was refer- No. 80-2151. ring to a mere incident ain ease. There is no may case here there never one be as Appeals, United States Court of the majority opinion recognizes when it Seventh Circuit. respondent tells the grounds to save its a counterclaim for the trial of underly- Argued Nov. ing charges, discrimination “should there be Jan. Decided one.” may agree While we well with Good- year that an proceeding does require “all the formalities of a civil suit,” we, I do not hand, think on the other equate
should “summary” opportu- with no
nity present whatsoever a case. my view, egregious aspect the most present ease is the almost unlimited
scope which the EEOC with bureaucratic blitheness seeks im-
pose industry. on this respondent as-
serts given that had it been the opportuni-
ty, it would have demonstrated to the dis-
trict court that the subpoena requests the
production documents, of thousands of compilation
well as the of countless more
pieces of information which are not con- records; in corporate
tained and that respondent be required would to do extend- research, including interviewing numer-
ous employees, an effort which would in-
volve hundreds of hours of work. One need
do no more Appendix than read A of the
majority opinion to respon- realize that
dent expressed no idle fear.