INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 150 (MINTEQ INTERNATIONAL, INC.)

National Labor Relations Board - Unpublished Board Decisions

Jan 29, 2010

25-CB-009289 (N.L.R.B. Jan. 29, 2010)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
LOCAL 150, AFL-CIO
and Case 25-CB-9289
JOEL TIBBETTS
ORDER'
International Union of Operating Engineers, Local 150, AFL-CIO's petition
to revoke subpoena duces tecum B-622151 is denied. The subpoena seeks
information relevant to the matter under investigation, as required by Section
11 (1) of the Act and Section 102.31 (b) of the Board's Rules and Regulations, and
the Union has failed to establish any legal basis for revoking the subpoena. See
generally NLRB v. North Bay Plumbing, 102 F.3d 1005 (9th Cir. 1996); NLRB v.
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 (11 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 (1st 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).
2Carolina Food Processors, Inc., 81 F.3d 507 (4" Cir. 1996).
However, we find that the Union has asserted a legitimate claim of
confidentiality in the documents requested in paragraphs 1 through 3, part c, of
the subpoena, each of which requests "Names and titles of all individuals
compensated, amount compensated, and description of services rendered,"
3warranting issuance of a protective order. Those documents may reveal the
identity of employees who have engaged in organizing, strike, and/or picketing
activities on behalf of the Union. Accordingly, we direct that any information
2 It is well settled that the merits of a charge are not at issue in proceedings to
revoke a subpoena. See NLRB ex rel. Int'l Union of Elec., Radio & Mach.
Workers, AFL-CIO-CLC v. Dutch Boy, Inc., 606 F.2d 929, 933 (1 Oth Cir. 1979)
("because piecemeal appeals will disrupt and delay resolution of labor disputes,
parties opposing the Board may not interpose defenses to the merits of the
underlying unfair labor practice charges in subpoena enforcement actions");
NLRB v. Frederick Cowan & Co., Inc., 522 F.2d 26, 28 (2nd Cir. 1975) ("[n]o
defense relating to the administrative proceedings can be raised" during an
administrative subpoena enforcement action); Cudahy Packing Co. v. NLRB, 117
F.2d 692, 694 (10th Cir. 1941) (a party in an administrative subpoena
enforcement action "may not ... assert its defenses in the principal case"); EEOC
v. A.E. Staley Mfg. Co., 711 F.2d 780, 788 (7th Cir. 1983) ("defenses on the
merits of an administrative charge may not be raised to block the enforcement of
an administrative subpoena"). We therefore express no view as to the Union's
contention that the charge is without merit, as this contention has no bearing on
whether the subpoena should be revoked.
Further, Member Schaumber notes that the subpoena broadly calls for
production of, inter alia, "all" books and records that document the disputed
expenses. He agrees that these documents relate to the matter under
investigation but does not reach the issue of whether the General Counsel has
established that production of "all" such documents is necessary to the
investigation of this charge, as the petition does not argue that the subpoena
should be revoked or limited on that basis.
Chairman Liebman notes that the Union has not argued that the Regional
Office is improperly treating the unfair labor practice charge as a challenge under
California Saw & Knife Works, 320 NLRB 224, 233 (1995), enfd. sub nom.
Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang
v. NLRB, 525 U.S. 813 (1998).
3 See Rule 26(c) of the Federal Rules of Civil Procedure.
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concerning the names, titles, or job descriptions of employees who have
participated in organizing, strike, picketing, and/or other protected concerted
activities on behalf of the Union, which is provided pursuant to the subpoena and
this Order, shall be used solely for the purpose of the unfair labor practice
investigation and shall not be disclosed to Minteq International, Inc. or any other
third parties.
Dated, Washington, D.C., January 29, 2010.
WILMA B. LIEBMAN, CHAIRMAN
PETER C. SCHAUMBER, MEMBER
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