Key Food Co-op

National Labor Relations Board - Unpublished Board Decisions

Mar 9, 2017

22-CA-181542 (N.L.R.B. Mar. 9, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
KEY FOOD CO-OP
and Case 22-CA-181542
UNITED FOOD AND COMMERCIAL
WORKERS LOCAL 464A
ORDER
The Petition to Revoke subpoenas duces tecum B-1-U3U6T3, B-1-U3TZDV, B-1-
U3VKST, and B-1-U3VE7L, filed by SuperFresh Food World, Bloomfield, New Jersey;
Food Emporium, Garwood, New Jersey; SuperFresh Food World, Belleville, New Jersey;
and SuperFresh Food World, Irvington, New Jersey (collectively, the Employers), is
denied. The subpoenas seek information relevant to the matters 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.1 Further, the

1 In considering the petition to revoke, we have evaluated the subpoenas in light of
the Region’s statement in its opposition brief that it is willing to narrow its request in
subpoena par. 8 (Belleville and Bloomfield subpoenas)/par. 7 (Garwood and
Irvington subpoenas) to only the correspondence pertaining to arrangements made
by the Employers with International Longshoremen’s Association Local 1964 to sign
up the non-supervisory employees at the four stores for membership in Local 1964,
and the recognition of Local 1964 as the collective-bargaining representative of
those employees. Contrary to our dissenting colleague's assumption, the Region's
offer to limit the scope of the subpoena does not establish that the subpoena initially
was overbroad, and we find that it was not. Rather, the Region's modifications
appear merely to promote efficiency and provide further clarity to the parties.
Acting Chairman Miscimarra respectfully dissents from the Board majority’s
denial of the petition to revoke as to subpoena par. 8 (Belleville and Bloomfield
subpoenas)/par. 7 (Garwood and Irvington subpoenas), which requests all
correspondence between the Employers and Local 1964 pertaining to the non-
supervisory employees employed at the Employers’ facilities. 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, Acting Chairman
Miscimarra believes 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
2
Employers have failed to establish any other legal basis for revoking the subpoenas.2 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).
Dated, Washington, D.C., March 9, 2017
PHILIP A. MISCIMARRA, ACTING CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER

majority does here) based on a change that was communicated only after the
petition to revoke is under consideration by the Board. See Sec. 11(1) (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”). Regarding the
majority’s statement that the Region’s modification served “merely to promote
efficiency and provide further clarity to the parties,” he believes these efforts must
be undertaken before disputes regarding a subpoena’s scope are presented to the
Board in a party’s petition to revoke. Finally, Acting Chairman Miscimarra believes
that granting a petition to revoke in the circumstances presented here would be
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).
In addition, Acting Chairman Miscimarra would grant the petition to revoke as
to par. 6 (Belleville and Bloomfield subpoenas)/par. 5 (Garwood and Irvington
subpoenas) (requesting “[a]ll employment manuals and handbooks, and
acknowledgments of receipt signed by non-supervisory employees employed by
[the Employers]”) except for those handbook provisions that reasonably relate to the
charge allegations regarding unlawfully refusing to hire former members of United
Food and Commercial Workers Local 464A, telling employees that they were
represented by Local 1964, and granting recognition to Local 1964. See Allied
Waste Services of Massachusetts, LLC, Cases 01-CA-123082, -126843 (Dec. 31,
2014).
2 Regarding the request in par. 7 (Belleville and Bloomfield subpoenas)/par. 6 (Garwood
and Irvington subpoenas) for employees’ applications for membership in International
Longshoremen’s Association Local 1964, although we are confident that this information
would not be disseminated by the Region, in the absence of a clear statement by the
Region in this regard, and in an abundance of caution, we direct the Regional Director to
ensure that this information is kept confidential during the investigation of the charge.