Fox Rent A Car

National Labor Relations Board - Unpublished Board Decisions

Apr 19, 2017

12-CA-186537 (N.L.R.B. Apr. 19, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FOX RENT-A-CAR
and Case 12-CA-186537
TEAMSTERS LOCAL UNION NO. 769
ORDER
The Employer’s Petition to Revoke subpoena duces tecum B-1-737436 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. Further, the Employer has failed
to establish any other 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).1
Dated, Washington, D.C., April 19, 2017.
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER

1 In considering the petition to revoke, we have evaluated the subpoena in light of the
Region’s statement that to the extent that the subpoena could be read to seek all
documents that contain the Levins’ telephone numbers and addresses, the Region
amends the subpoena to request only the rental agreement in effect about October 11,
2016, or any other document, that reflects their telephone number(s) or address(es).
Contrary to our dissenting colleague’s assumption, the Region’s modification of the
subpoena does not establish that the subpoena initially was overbroad, and we find that it
was not. Instead, it appears that the Region’s modification is designed to promote
efficiency in obtaining from the Employer the information that the Region needs for its
investigation.
2
ACTING CHAIRMAN MISCIMARRA, dissenting.
I respectfully dissent from the Board majority’s denial of the petition to revoke the
subpoena, which requests “[a]ll documents that will show contact information (phone
number(s) and address(es)) for customers Brad Levin and Dolores Levin.” Given the
Region’s stated basis for this request (that it merely desires the addresses or phone
numbers for these two customers), I believe requests seeking all documents containing
contact information for these customers are clearly overbroad and contrary to the Board’s
own guidelines for such requests in NLRB Casehandling Manual (Part One) Unfair Labor
Practice Proceedings Sec. 11776. When subpoena requests are overly broad or
otherwise seek information that does not reasonably relate to matters under investigation,
and when a subpoenaed party’s petition to revoke raises appropriate objections to the
requests on that basis, I believe it is more appropriate for the Board to grant the petition to
revoke as to such requests, rather than denying the petition to revoke (as the Board
majority does here) based on changes that were communicated only after the petition to
revoke is under consideration by the Board. To its credit, the Region has now indicated
that it amends the subpoena to request only the rental agreement in effect about October
11, 2016, or any other document, that reflects their telephone number(s) or address(es) for
customers Brad Levin and Dolores Levin. However, I disagree with the Board’s practice
that often permits an overly broad subpoena request to be clarified or amended by the
Region after a party has filed a meritorious petition to revoke, which then prompts the
Board to deny the petition. In my view, this practice encourages the issuance of
subpoenas that are not appropriately tailored to matters under investigation, which in turn
needlessly leads to Board intervention in many subpoena disputes that could have been
avoided had the subpoena requests been crafted in a manner that appropriately conforms
3
to matters relevant to the charge. Additionally, I believe this practice creates the
appearance of unfairness by permitting one side (the Region’s attorneys, who are
representatives of the General Counsel) to avoid having a subpoena revoked by making
an after-the-fact “change” that is communicated in briefing. See Sec. 11(1) of the Act
(stating the Board “shall revoke” any subpoena where “the evidence whose production is
required does not relate to any matter under investigation, or any matter in question in
such proceedings, or if in its opinion such subpoena does not describe with sufficient
particularity the evidence whose production is required”).
Therefore, contrary to the majority’s statement that the Region’s amendment served
“merely to promote efficiency in obtaining from the Employer the information that the
Region needs for its investigation,” I believe these efforts must be undertaken before
disputes regarding a subpoena’s scope are presented to the Board in a party’s petition to
revoke. Accordingly, I would grant the petition to revoke, without prejudice to the potential
issuance of a new subpoena that is appropriate in scope, subject to applicable time limits
and other requirements set forth in the Act and the Board’s Rules and Regulations.
PHILIP A. MISCIMARRA, ACTING CHAIRMAN