Fresh Direct

National Labor Relations Board - Board Decisions

Feb 26, 2013

29-CA-093054 (N.L.R.B. Feb. 26, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FRESH DIRECT, LLC
and Cases 29-CA-093054
29-CA-094538
JOSE CABRERA
ORDER
The Employer’s petition to revoke subpoena duces tecum B-705612 is denied.
The subpoena seeks information relevant to the matter 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.1 Further, the
Employer has failed to establish any other legal basis for revoking the subpoena.2 See
generally NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005 (9th Cir. 1996); NLRB v.

1 To the extent that the Employer has provided some of the requested material, it is not
required to produce that information again.
2 We reject the Employer’s argument that the Board lacked a quorum to issue the
instant subpoena. Section 102.31(a) of the Board’s Rules and Regulations states that
“[t]he Board, or any Member thereof, shall, on the written application of any party,
forthwith issue subpoenas requiring the attendance and testimony of witnesses and the
production of any evidence, including books, records, correspondence, or documents, in
their possession or under their control. The Executive Secretary shall have the
authority to sign and issue any such subpoenas on behalf of the Board or any Member
thereof.” Here, Chairman Pearce issued the subpoena, in accordance with this Rule.
To the extent that the Employer is arguing that the Board lacks a quorum to rule on
the Petition to Revoke, we also reject this argument. We recognize that the United
States Court of Appeals for the District of Columbia Circuit has found that the
President’s recess appointments were not valid. See Noel Canning v. NLRB, ___ F.3d
___ (D.C. Cir. 2013). However, as the court itself acknowledged, its decision is in
conflict with at least three other courts of appeals. See Evans v. Stephens, 387 F.3d
1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005); United States v. Woodley, 751
F.2d 1008 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). This
question remains in litigation, and until such time as it is ultimately resolved, the Board
is charged to fulfill its responsibilities under the Act.
2
Carolina Food Processors, Inc., 81 F.3d 507 (4th Cir. 1996).
Dated, Washington, D.C., February 26, 2013
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER