Arizona Blue Stake d/b/a Arizona 811

National Labor Relations Board - Board Decisions

Feb 2, 2017

28-CA-182241 (N.L.R.B. Feb. 2, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ARIZONA BLUE STAKE d/b/a ARIZONA 811
and Case 28-CA-182241
SHANTEL O’HARA
ORDER
The Employer’s petition to revoke subpoena duces tecum B-1-U3HY5R is
granted in part and denied in part. The petition is granted to the extent that paragraph 1
of the subpoena seeks personal, sensitive, and identifying information maintained in
distinct employee files separate from the Employer’s personnel files. The petition is
also granted to the extent that paragraph 5 of the subpoena seeks any work-related
emails within the requested 4,995 pages of emails referred to in the declaration of
Sandra Holmes.1
In all other respects, the petition is denied. The subpoena seeks information
relevant to the matters under investigation and describes with sufficient particularity the
evidence sought, as required by Section 11(1) of the Act and Section 102.31(b) of the
Board’s Rules and Regulations.2 Further, the Employer has failed to establish any other

1 To the extent that paragraphs 1 and 5 of the subpoena seek other information not
described above, the petition is denied. This Order is without prejudice to the Region's
issuance of a new subpoena seeking this additional information, if it can establish why
such information is relevant to its investigation.
2 Insofar as the subpoena encompasses documents that the Employer believes
in good faith to be subject to the attorney-client privilege or the attorney work
product doctrine, this Order is without prejudice to the Employer’s prompt
submission of a privilege log to the Region identifying and describing each such
document, and providing sufficient detail to permit an assessment of the
Employer’s claim of privilege or protection. The Employer is directed to produce
legal basis for revoking the subpoena. See generally NLRB v. North Bay Plumbing,
Inc., 102 F.3d 1005 (9th Cir. 1996); NLRB v. Carolina Food Processors, Inc., 81 F.3d
507 (4th Cir. 1996).3
Dated, Washington, D.C., February 2, 2017
PHILIP A MISCIMARRA, ACTING CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER

all responsive documents in its possession not subject to any good-faith claim of
privilege or protection.
In addition, the Employer generally asserts that the subpoena seeks
documents that do not exist. The Employer is not required to produce
subpoenaed evidence that it does not possess, but the Employer is required to
conduct a reasonable and diligent search for all requested evidence, and as to
requested evidence that the Employer determines it does not possess, the
Employer must affirmatively represent to the Region that no responsive evidence
exists.
3 We reject the Employer's contention that the subpoena should be revoked because
the Region failed to properly serve the subpoena on the Employer's attorney. No
prejudice resulted from this failure, as the petition to revoke was timely filed. See,
e.g., NLRB v. Playskool, Inc., 431 F.2d 518, 520 (7th Cir. 1970) (court enforced Board's
subpoenas, despite failure to serve respondents' attorneys, noting that the specific
respondents were personally served and that timely petitions to revoke were filed and
thus, no prejudice was shown); NLRB v. Cincinnati Bronze, Inc., 811 F.2d 607, 607 (6th
Cir. 1986) (failure to serve respondent's counsel violated the Board's rules, but the
subpoena was enforced because the petition to revoke was timely filed, and thus no
prejudice was shown).