EVERPORT TERMINAL SERVICES, INC.

National Labor Relations Board - Unpublished Board Decisions

Aug 15, 2017

32-CA-172286 (N.L.R.B. Aug. 15, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
EVERPORT TERMINAL SERVICES, INC.
and Case 32-CA-172286
INTERNATIONAL ASSOCIATION OF
MACHINISTS & AEROSPACE WORKERS,
DISTRICT LODGE 190, LOCAL LODGE 1546,
AFL-CIO, AND INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS,
DISTRICT LODGE 190, LOCAL LODGE 1414,
AFL-CIO
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION
and Case 32-CB-172414
INTERNATIONAL ASSOCIATION OF
MACHINISTS & AEROSPACE WORKERS,
DISTRICT LODGE 190, LOCAL LODGE 1546,
AFL-CIO, AND INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS,
DISTRICT LODGE 190, LOCAL LODGE 1414,
AFL-CIO
ORDER1
Respondent International Longshore and Warehouse Union and non-party
International Longshore and Warehouse Union Local 10’s (the Unions) request for
special permission to appeal Administrative Law Judge Sharon Levinson Steckler’s
rulings ordering an in camera review of disputed documents in the Unions’ privilege logs
and later ordering the production of certain documents to the General Counsel, some in

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2
their entirety and others with designated redactions, is granted. On the merits, the
appeal is denied. The Unions have failed to establish that the judge abused her
discretion in requiring the in camera review of certain documents and the production of
some of those documents to the General Counsel.2
Dated, Washington, D.C., August 15, 2017.
PHILIP A. MISCIMARRA, CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN MCFERRAN, MEMBER

2 Although the Unions argue that the judge lacks authority to enforce the subpoenas
duces tecum issued to them and that she improperly found that they waived the
attorney-client privilege by failing to meet the May 8, 2017 deadline for the production of
documents for in camera review, we need not reach these issues. The judge did not
find that the Unions waived their privilege or impose any other sanction based on the
Union’s late production on May 8; instead, the judge ordered the Unions to produce the
documents by May 10, and later further extended the deadline until May 15. In addition,
the judge’s May 16, 2017 Order does not enforce the subpoenas, but rather requires the
Unions to produce some of the disputed documents based on her assessment that
those documents are not protected by privilege. Chairman Miscimarra agrees that the
judge’s order is not a sanction. He also notes that the judge does not have authority
under NLRA Sec. 11(2) to order sanctions for failure to comply with a subpoena, and
the district courts are responsible for addressing production obligations. McDonald’s
USA, LLC, 364 NLRB No. 144, slip op. at 4 (Member Miscimarra, dissenting) (2016).