E & A Protective Services - Bravo, LLC

National Labor Relations Board - Unpublished Board Decisions

Apr 22, 2013

26-CA-091325 (N.L.R.B. Apr. 22, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
E & A PROTECTIVE SERVICES-BRAVO, LLC
and Case 26-CA-091325

PIUS OTEBELE
and Case 26-CA-092878
JAMES HARDNETT
ORDER
The Employer’s Partial Petition to Revoke Subpoena Duces Tecum B-709008 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
Respondent has failed to establish any other legal basis for revoking the subpoena.2
See generally NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005 (9th Cir. 1996); NLRB

1 In evaluating the subpoena, we have viewed it as modified by the Region’s opposition
brief as follows: (1) the subpoena does not require the personal appearance of the
Employer’s custodian of records; (2) subpoena paragraph 2 requests documents in the
possession, custody or control of the Employer, its current or former agents, attorneys
and any other persons or companies directly or indirectly employed by the Employer;
and (3) subpoena paragraph 3 requests documents limited to the Memphis, Tennessee,
Internal Revenue Service facility worksite.
2 We reject the Employer’s argument that the Board should hold a determination on this
petition in abeyance pending a constitutionally valid quorum. 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
remains in litigation, and pending a definitive resolution, the Board is charged to fulfill its
responsibilities under the Act. See Sub-Acute Rehabilitation Center at Kearny d/b/a
Belgrove Post Acute Care Center, 359 NLRB No. 77, slip op. 1, fn.1 (2013).
2
v. Carolina Food Processors, Inc., 81 F.3d 507 (4th Cir. 1996).
Dated, Washington, D.C., April 22, 2013.
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER