Cal-Bio/Crown Natural Foods

National Labor Relations Board - Unpublished Board Decisions

Jan 29, 2010

32-CA-024486 (N.L.R.B. Jan. 29, 2010)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CALIFORNIA BIO-PRODUCTEX, INCJ
CROWN NATURAL FOODS
and Case 32-CA-24486
CREAMERY EMPLOYEES AND DRIVERS,
PUBLIC, PROFESSIONAL AND MEDICAL
EMPLOYEES, LOCAL NO. 517, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
ORDER'
The Petitions to Revoke Subpoenas Ad Testificandurn A-814017, A-814018, and
A-814075 and Subpoena Duces Tecurn B-630404 are denied. The subpoenas seek
information relevant to the matter under investigation and describe 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. Further, the Petitioner has failed to
establish any other legal basis for revoking the subpoenas. 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 (4 1h Cir. 1996).
1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow,
and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-
member group, all of the Board's powers in anticipation of the expiration of the terms of
Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the three-member
group. As a quorum, they have the authority to issue decisions and orders in unfair
labor practice and representation cases. See Sec. 3(b) of the Act. See Teamsters
Local 523 v. NLRB, -F.3d , 2009 WL 4912300 (1 Oth Cir. Dec. 22, 2009); Narricot
Industries, L.P. v. NLRB, 587 F.3d 654 (4th Cir. 2009); Snell Island SNF LLC v. NLRB,
568 F.3d 410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11,
2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert.
granted 130 S.Ct. 488 (2009); Northeastern Land Services v. NLRB, 560 F.3d 36 (1 st
Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213).
But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir.
2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009) (No. 09-377).
The General Counsel is required to identify with some degree of particularity the
relevant documents sought. Subpoenas Duces Tecum B-630363 and B-630364 fail to
do so. Consequently, the Petition to Revoke those subpoenas is granted to the extent
that the General Counsel seeks the production of all documents responsive to each of
the numbered paragraphs, provided that the Petitioner must produce such documents
2as are sufficient to determine the requested information. In all other respects, the
3Petitions to Revoke are denied.
However, we condition our denial of the petitions with respect to subpoenas ad
testificandum A-814017, A-814018, and A-814075 upon the Region supplying the
subpoenaed witness with a copy of the unfair labor practice charge under investigation.
Section 102.31(b) of the Board's Rules and Regulations states, in pertinent part,
that the Board shall revoke a subpoena if in its opinion the subpoena "does not describe
with sufficient particularity the evidence whose production is required." The testimonial
subpoenas in this case identify, by name and number, the unfair labor practice case
2 For example, par. 7 requires production of "All documents setting forth the names
of all corporate officers and directors" of the Charged Parties. Such a request could
conceivably require the production of an enormous array of documents. Since it
appears that the General Counsel seeks only the names of all corporate officers and
directors-the kind of information that would be found, for example, in a company's by-
laws-we require production only of such documents as are sufficient to determine the
specific information requested. A similar analysis could be performed on each of the
other requests. Consequently, we recommend that the General Counsel and the
Charged Parties promptly confer to avoid any confusion over the production and to
assure compliance by the Charged Parties with the subpoenas.
We have construed the Petitions to Revoke liberally in light of the movant's pro
se status, and conclude in the particular circumstances of this case that this issue is
properly before us. This limitation on Subpoenas Duces Tecurn B-630363 and B-
630364 is without prejudice to the General Counsel's right to issue subsequent
subpoenas if the production made does not sufficiently provide the information sought.
3 To the extent that the Employer has already provided the Region with documents
encompassed by this subpoena, it is not required to again provide them.
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about which testimony is sought. Accordingly, under current Board law, they are
sufficiently particularized. See Offshore Mariners United, 338 NLRB 745 (2002)
(subpoena ad testificandum was not overly broad or vague where it identified unfair
labor practice cases by name and number); Postal Workers Local 64 (USPS), 340
NLRB 912 (2003).
However, a difference of opinion has arisen concerning whether Offshore
Mariners and Postal Workers Local 64 (USPS) were correctly decided. Specifically,
there is disagreement concerning (1) whether the particularity requirement of Section
102.31 (b) of the Board's Rules and Regulations applies to a subpoena ad testificandurn,
and (2) if the particularity requirement does apply, whether a subpoena ad testificandurn
must describe the testimony sought, as well as identify the relevant unfair labor practice
case by name and number. Without deciding these issues, we shall require the Region
to provide the subpoenaed witness with a copy of the underlying unfair labor practice
4charge. This Order shall be nonprecedential.
Dated, Washington D.C., January 29, 2010
WILMA B. LIEBMAN, CHAIRMAN
PETER C. SCHALIMBER, MEMBER
4 Chairman Liebman would adhere to existing precedent on this issue. For institutional
reasons, however, she joins her colleague in requiring the Region to provide the
subpoenaed witness with a copy of the unfair labor practice charge under investigation.
In addition, because the subpoenas contain general descriptions of the matters
concerning which the witness will be expected to testify, we shall not require that this
information be provided a second time.
3