American Postal Workers Local 64

National Labor Relations Board - Board Decisions

Oct 10, 2003

340 N.L.R.B. 912 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
American Postal Workers Union Local 64 (United
States Postal Service) and Teresa S. Taft. Case
21–CB–13333(P)
October 10, 2003
ORDER DENYING PETITION
TO REVOKE SUBPOENA
CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
This matter is before the Board pursuant to the Union’s
petition to revoke two investigatory subpoenas ad testifi-
candum (A-607736 and A-607737), which were served by
the Regional Director on January 24, 2003. The subpoenas
were served on Yolanda Elder and Arthur Clark, the Un-
ion’s general president and vice president, respectively, in
connection with the Regional Office’s investigation of an
unfair labor practice charge, Case 21–CB–13333(P), filed
against the Union by Teresa Taft. The charge alleges that
the Union violated Section 8(b)(1)(A) of the Act by: (1)
removing Taft from her position as union steward because
her husband had filed unfair labor practice charges against
the Union; (2) prohibiting her from attending mandatory
union steward training; and (3) failing to provide her with
notices of the time and location of Union Women’s Com-
mittee meetings.
On January 27, 2003, the Union filed a timely petition to
revoke the two subpoenas. The Union’s petition set forth
the following grounds for revoking the subpoenas:
The Union has already cooperated with the Region by
providing two (2) written statements setting forth its
position, as well as numerous documents, with regard
to the above-entitled charge. In addition, [the Union
is] unaware of any law that requires a party to produce
the Charged Party for the purpose of providing an affi-
davit to the Region during the investigation of an un-
fair labor practice charge against that party. Moreover,
[the Regional investigator’s] desire to hear Ms. Elder
and Mr. Clarke’s recollection of an alleged conversa-
tion with the Charging Party is insufficient to warrant
the issuance of subpoenas. As always, the region has
the option of issuing a complaint based on the evi-
dence (or lack thereof) it has already compiled.
We deny the Union’s petition to revoke. Section 11(1)
of the Act specifically authorizes the issuance of investiga-
tory subpoenas seeking testimony,1 and the Board’s author-

1 Sec. 11(1) provides, in relevant part, as follows:
The Board, or its duly authorized agents or agencies, shall at all
reasonable times have access to, for the purpose of examination,
and the right to copy any evidence of any person being investi-
gated or proceeded against that relates to any matter under in-
vestigation or in question. The Board, or any member thereof,
shall upon application of any party to such proceedings, forth-
ity to issue such subpoenas is well established. See Off-
shore Mariners United, 338 NLRB 745, 746 (2002); NLRB
v. North Bay Plumbing, Inc., 102 F.3d 1005, 1007–1008
(9th Cir. 1996).
Our dissenting colleague would grant the Union’s peti-
tion to revoke the subpoenas on the grounds that the Re-
gional Director has failed to show that the subpoenaed tes-
timony is relevant to the investigation, and that the subpoe-
nas do not describe with particularity the evidence being
sought, as required by Section 11(1) of the Act and Section
102.31(b) of the Board’s Rules and Regulations. For the
reasons set forth below, we disagree.
As an initial matter, we find it significant that the Union
itself has not raised the issues addressed by our colleague.
Our colleague states his belief that the Union has suffi-
ciently raised the issues; however, he fails to identify any
basis in the Union’s petition to revoke to support that be-
lief. Nor are we able to discern any.
Our colleague alternatively asserts that the Board has a
responsibility to assure that its subpoenas are in compliance
with Board Rules. The Board surely has that responsibil-
ity; but we should exercise it with appropriate restraint by
generally limiting our review to the issues and arguments
raised by the parties.2 There are both legal (procedural due
process) and practical (administrative economy and effi-
ciency) reasons for exercising such judicial restraint.3
As our colleague has raised the issues, however, we will
address them. First, the subpoenas clearly “relate[] to [a]
matter under investigation or in question” as required by
Section 11(1) of the Act and Section 102.31(b) of the
Board’s Rules. The Regional Director asserts that both of
the subpoenaed union officials were present during the
underlying events alleged in the charge, and that both are
being subpoenaed to give their accounts of those events so

with issue to such party subpoenas requiring attendance and tes-
timony of witnesses or the production of any evidence in such
proceeding or investigation requested in such application.
Within five days after the service of the subpoena on any person
requiring the production of any evidence in his possession or
under his control, such person may petition the Board to revoke,
and the Board shall revoke, such subpoena if in its opinion 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.
2 See, e.g., Avne Systems, Inc., 331 NLRB 1352, 1354 (2000) (Board
Member’s dissenting argument not made by excepting party itself is not
procedurally before the Board).
3 We perceive no harm to the effective administration of the Act here
by enforcing subpoenas that even the party seeking revocation does not
contend are too vague or seek irrelevant information. On the other
hand, we do believe such harm would result if we adopted our col-
league’s position and routinely revoked subpoenas on grounds not
asserted by the party seeking revocation.
340 NLRB No. 98
POSTAL WORKERS LOCAL 64 (USPS) 913
that the Regional Director may complete the investigation
and make a determination whether to issue a complaint.
No further demonstration of relevance is required. Cf.
RNR Enterprises, Inc. v. SEC, 122 F.3d 93 (2d Cir. 1997),
cert. denied 522 U.S. 958 (1997) (relevance of investiga-
tory subpoenas ad testificandum was established by SEC
attorney’s declaration that the subpoenaed testimony would
assist in determining whether there had been violations of
the Federal securities laws as described in the SEC’s formal
order directing an investigation, and specifically in connec-
tion with RNR’s 1995 offering of $5 million of unregis-
tered securities to the public).
Second, the subpoenas describe with sufficient particu-
larity the testimony sought. The subpoenas ad testifican-
dum specifically identify the unfair labor practice case in-
volving the Union—American Postal Workers Union, Lo-
cal 64, Case 21–CB–13333(P)—regarding which the union
officials are required to testify. Again, nothing more is
required. See Offshore Mariners United, supra (subpoena
ad testificandum relevant and not overly broad or vague
where subpoena informed witness that his testimony was
needed pursuant to cited unfair labor practice charges); see
also RNR Enterprises, Inc. v. SEC, supra.4 Moreover, it is
clear that the Union was aware of the testimony being
sought by the subpoenas, as its petition to revoke describes
it (“Ms. Elder and Mr. Clarke’s recollection of an alleged
conversation with the Charging Party.”)
Accordingly, we deny the Union’s petition to revoke the
subpoenas.

CHAIRMAN BATTISTA, dissenting.
I would grant the Union’s Petition to Revoke. The
charge alleges essentially that the Union, for discriminatory
reasons, removed the Charging Party from her stewardship.
The Regional Director tells us only that the two subpoe-
naed witnesses have not “provide[d] sufficient information
regarding certain underlying events,” and thus “further
evidence” is required. We do not know what the “informa-
tion” is, what the certain “underlying events” are, or what
the “further evidence” is.1 I believe that a more specific
showing of relevance is required.
Section 102.31(b) requires that the subpoena must “de-
scribe with sufficient particularity the evidence whose pro-

4 Contrary to our colleague’s suggestion, Offshore Mariners is not
distinguishable. Like here, the testimonial subpoena in that case simply
cited the case name and number. The more particular description of the
testimony being sought was not set forth in the subpoena itself; rather,
as here, it was set forth in the Regional Director’s opposition to the
petition to revoke.
1 Concededly, there is a suggestion that one specific matter involved
is an alleged conversation between a subpoenaed witness and the
Charging Party. However, this is a matter raised by the Union, not by
the party asking for the subpoena. In addition, the subpoena request is
not confined to that one item.
duction is required.” See Section 102.31(b) of the Board’s
Rules. In my view, the general references to “underlying
events,” “further evidence” and “information” fall far short
of the “particularity” that is required.
My colleagues say that it is sufficient that the subpoena
simply identify the name and number of the case under
investigation. I disagree. The case caption itself would set
forth that information and, according to my colleagues,
nothing more is required. In my view, the mere naming of
the case does not, standing alone, “describe with sufficient
particularity the evidence whose production is required.”
My colleagues cite Offshore Mariners United, supra, as
support for their view. However, that case offers no such
support. In that 8(b)(4)(B) case, a union official had writ-
ten a letter to two neutral employers who did business with
a primary employer. The letter described the alleged anti-
union activity of the primary and asked to meet with the
neutrals. The subpoena named the letter-writer and sought
his testimony concerning the letter. The subpoena was
therefore narrowly focused, quite unlike the “underlying
events” and “further evidence” involved here. The sub-
poena was therefore particularized. In our case, as set
forth above, the subpoena is vague and general.
My colleagues apparently believe that a subpoena need
not set forth with particularity the evidence whose produc-
tion is required. In their view, it is sufficient if the particu-
larity is set forth in the opposition to revoke the subpoena.
Of course, this is directly contrary to Rule 102.31(b), which
requires that the subpoena itself describe the information
with particularity. In addition, the Rule comports with
general precepts concerning subpoenas. That is, it makes
no sense to permit a subpoena to be vague and indefinite
and to have the gaps filled in only after motions and
countermotions.
Finally, my colleagues say that the Union has not “spe-
cifically” raised the issues discussed above. I believe that
the Union has sufficiently raised the issue. In any event, it
is the Board’s subpoena that is being issued, and it is the
Board’s responsibility to assure that its subpoenas are in
compliance with Board Rules.
I agree with my colleagues’ observation that the Board
should exercise its responsibilities “with appropriate re-
straint.” However where, as here, a subpoena wholly fails
to comport with a Rule, it is surely the Board’s responsi-
bility to point out the failure and to act accordingly.2
2 Contrary to the suggestion of my colleagues I would not “rou-
tinely” revoke a subpoena on a ground that is not asserted by the party
seeking revocation. Rather, I would revoke the subpoena here because
it utterly fails to comport with the Board’s Rule.