DynCorp International, LLC

National Labor Relations Board - Board Decisions

Jun 23, 2016

15-CA-165803 (N.L.R.B. Jun. 23, 2016)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DYNCORP INTERNATIONAL LLC
and Cases 15-CA-165803
INTERNATIONAL UNION OF
ELECTRICAL AND COMMUNICATIONS
WORKERS OF AMERICA, LOCAL 83770
ORDER1
The Employer’s Petition to Revoke Subpoena Duces Tecum No. B-1-QGNDDZ is
denied.2 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.3 Further, the

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 Unlike the Employer, we interpret paragraph 6 of the subpoena to require production of
the personnel files of those employees identified in paragraph 5, i.e., those employees
investigated for time and attendance reporting errors or misconduct. So interpreted,
paragraph 6 is not overbroad.
Member Miscimarra agrees with the Employer’s argument that paragraph 6 is
overbroad, and would grant the Employer’s petition to revoke as to paragraph 6 to the
extent it requires the production of personnel files of employees other than those whose
alleged “errors or misconduct in reporting time and attendance” were the focus of
Employer investigations into such alleged errors or misconduct during the period from July
2012 to the present. As noted above, however, the Board majority interprets paragraph 6
only to require the production of personnel files for employees whose errors or misconduct
were the focus of Employer investigations as described above. Consequently, regardless
of whether paragraph 6 was objectionable as originally drafted, the Employer need not
produce personnel files for the additional employees described above.
3 To the extent that the subpoena encompasses some documents that the Employer
believes in good faith to be subject to the attorney-client privilege or the attorney work
product doctrine, this Order is without prejudice to the Employer’s prompt submission of a
privilege log to the Region identifying and describing each such document, and providing
sufficient detail to permit an assessment of the Employer’s claim of privilege or protection.
The Employer is directed to produce all responsive documents in its possession not
subject to any good-faith claim of privilege or protection.
2
Employer has failed to establish any other legal basis for revoking the subpoena.4 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).5
Dated, Washington, D.C., June 23, 2016
MARK GASTON PEARCE, CHAIRMAN
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER

4 We reject the Employer’s argument that the subpoena should be revoked because it was
improperly served. The Region served the subpoena in accordance with the Board’s
Rules and Regulations, Sec. 102.113(c), Service of subpoenas, which provides in relevant
part: “Subpoenas shall be served upon the recipient either personally or by registered or
certified mail . . ., or by leaving a copy thereof at the principal office or place of business of
the person required to be served.” Further, service was effective when the Region mailed
the subpoena via certified mail to the Employer’s business address. Best Western City
View Motor Inn, 327 NLRB 468, 468–469 (1999) (proof that subpoena was mailed
sufficient to prove service; proof of receipt is immaterial); National Automatic Sprinklers,
307 NLRB 481, 481 fn. 1 (1992) (service of a subpoena is accomplished by deposit in the
mail). In addition, we observe that no prejudice resulted from the purported impropriety in
service, as the Employer filed a timely petition to revoke.
5 The Region’s motion to supplement the record is granted. The Region’s motion to strike
the Employer’s response to the Region’s opposition is denied. The service issue regarding
the Employer’s response, described in the motion to strike, has been resolved. Further, it
is the Board’s practice to follow Baker Electric, 330 NLRB 521 (2000), with regard to
petitions to revoke investigative subpoenas and to allow the moving party to file a reply
brief without first moving for special leave of the Board “just as a party filing exceptions
under Sec. 102.46 is permitted to file such a brief.” Id. at 521 fn. 4.