RPT Communications LLC; SK Cabling Systems, LLC; TEKsystems , Inc.; and Richardson Telecommunication

National Labor Relations Board - Unpublished Board Decisions

Mar 15, 2017

29-CA-182088 (N.L.R.B. Mar. 15, 2017)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
RPT COMMUNICATIONS LLC;
SK CABLING SYSTEMS, LLC;
TEKSYSTEMS MANAGEMENT, INC.; AND
RICHARDSON TELECOMMUNICATIONS
SERVICE, INC. AS ALTER EGOS/SINGLE
EMPLOYERS AND AS A JOINT EMPLOYER
and Case 29-CA-182088
COMMUNICATIONS WORKERS OF
AMERICA
ORDER
The petition filed by TEKSystems Management, Inc. to revoke subpoenas duces tecum
B-1-U28N2L and B-1-U22858X, and the petition filed by Richardson Telecommunications
Service, Inc. to revoke subpoenas duces tecum B-1-U27LMJ and B-1-U27COB are denied.1 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.2 Further, the Petitioners have failed to establish
any other legal basis for revoking the subpoenas. 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).3

1 The Region inadvertently issued two identical subpoenas to each Petitioner.
2 We have evaluated the subpoenas in light of the Region’s clarifications in its opposition briefs
regarding pars. 3, 8 and 10 of each subpoena. (Opp. at 5, 6, 7).
3 The Petitioners assert that no responsive documents exist for subpoena pars. 4, 5 and 9. The
Petitioners are not required to produce evidence requested in the subpoenas that the Petitioners
do not possess, but the Petitioners are required to conduct reasonable and diligent searches for all
requested evidence, and as to requested evidence that the Petitioners determine that they do not
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Dated, Washington, D.C., March 15, 2017.
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Acting Chairman Miscimarra, dissenting in part:
Consistent with Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules and
Regulations, as stated in my dissent in Dolchin Pratt, LLC d/b/a Jimmy John’s Gourmet
Sandwiches, 05-CA-135334 (Nov. 6, 2015), I believe that a subpoena seeking documents
pertaining to an alleged joint-employer and/or single-employer status of a charged party
“requires more . . . than merely stating the name of a possible single or joint employer on the
face of the charge.” Id. at 3. In particular, the General Counsel must be able to articulate “an

possess, the Petitioners must affirmatively represent to the Region that no responsive evidence
exists.
Contrary to our colleague, as discussed at greater length in the Board’s Order in Dolchin
Pratt, LLC d/b/a Jimmy John’s Gourmet Sandwiches, 05-CA-135334 (Nov. 6, 2015), we find
that the subpoenas lie well within the scope of the Board’s broad investigative authority, which
extends not only to the substantive allegations of a charge, but to “any matter under investigation
or in question” in the proceeding. 29 U.S.C. § 161(1) (emphasis added); Sec. 102.31(b) of the
Board’s Rules. Moreover, nothing in Sec. 11 of the Act or Sec. 102.31(b) of the Board’s Rules
can be read to impose a requirement that the Regional Director articulate “an objective factual
basis” in order to compel the production of information that is necessary to investigate a pending
unfair labor practice charge. Nor can such a requirement be justified on the basis of Sec.
10054.4 of the Board’s Casehandling Manual, which does not relate to or mention subpoenas.
Further, although our colleague disagrees, we find that the subpoena requests are not
overbroad or unrelated to matters under investigation merely because some of the requests may
encompass locations other than New York City. Several of the requests of course do not seek
documents beyond the New York City area at all insofar as they are limited to “the Employer’s
facility,” which the subpoena defines as a particular facility located in New York, New York.
Additionally, the Region’s offer to limit the scope of pars. 3, 8, and 10, to the New York City
area, does not establish that the subpoena requests initially were overbroad or irrelevant, and we
find that they are not. Rather, the Region’s modifications appear simply to promote efficiency
and provide further clarity to the parties. Concerning those requests that do encompass locations
other than New York City, we find that they comply with the requirements of Sec. 11(1) of the
Act and Sec. 102.31(b) of the Board’s Rules, as the Region is investigating matters, such as the
Employer’s corporate formation and ownership, that may require documents other than those
that are directly related to the New York City operations.
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objective factual basis supporting such an inquiry.” Id. at 4–5. Cf. Casehandling Manual
Section 10054.4 (stating that “additional and more complete evidence, including all relevant
documents,” should be obtained if “consideration of the charging party’s evidence and the
preliminary information from the charged party suggests a prima facie case”) (emphasis added).
Here, the charge alleging violations of Section 8(a)(1), (2), and (3) refers to the
Petitioners, along with additional Charged Parties RPT Communications LLC and SK Cabling
Systems LLC, as alter egos/a single employer and joint employers, without additional, factual
information about those allegations. Thus, applying the above-mentioned principles, I would
find that the General Counsel has failed to articulate an objective factual basis for subpoenaing
documents regarding the possible joint employer and single employer relationship between
Richardson Telecommunications Service, Inc. and TEKSystems Management, Inc. I would
therefore grant the petitions with respect to the paragraphs that seek information regarding single
and joint employer status, without prejudice to the ability of the General Counsel to issue new
subpoenas seeking this information, if he can establish an objective factual basis supporting such
an inquiry, beyond the mere allegation in the charge that the Charged Parties are joint employers,
alter egos and a single employer.4
Additionally, I respectfully dissent from the majority’s denial of the petitions to revoke as
to requests that encompass locations other than New York City. 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

4 As I have stated elsewhere, I do not agree with the Board’s revised standard for assessing
joint-employer status under the Act. See BFI Newby Island Recyclery (Browning-Ferris
Industries of California), 362 NLRB No. 186, slip op. at 21-50 (2015) (Members Miscimarra and
Johnson, dissenting).
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revoke as to such requests, rather than denying the petition to revoke (as the majority does here)
based on a change that was communicated only after the petition to revoke is under consideration
by the Board. See Section 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 geographic clarification served “simply to promote efficiency and
provide further clarity to the parties,” 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. To the
fullest possible extent, the parties should resolve document production matters without the
Board’s intervention. Finally, granting the petitions to revoke in the circumstances presented
here would be without prejudice to the potential issuance of new subpoenas that are 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