Comau, Inc.

National Labor Relations Board - Unpublished Board Decisions

Mar 26, 2013

07-CA-094129 (N.L.R.B. Mar. 26, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
COMAU, INC.
and Case 07-CA-094129

AUTOMATED SYSTEMS WORKERS
LOCAL 1123, affiliated with
CARPENTERS INDUSTRIAL COUNCIL,
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA
ORDER
The Employer’s petition to revoke subpoena duces tecum B-708711 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

1 To the extent that the Employer has provided some of the requested material, it is not
required to produce that information again, provided that the Employer accurately
describes which documents under subpoena it has already provided, states whether
those previously-supplied documents constitute all of the requested documents, and
provides all of the information that was subpoenaed.
2 We reject the Employer’s argument that the subpoena is without legal effect because
the Board is not properly constituted. 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 concluded that the
President’s recess appointments were not valid. See Noel Canning v. NLRB, 705 F.3d
490 (D.C. Cir. 2013). However, as the court itself acknowledged, its decision conflicts
with rulings of 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); U.S. v. Woodley, 751 F.2d
1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). This question
2
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 26, 2013.
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER

remains in litigation, and pending a definitive resolution, the Board is charged to fulfill its
responsibilities under the Act.