EMPIRE JANITORIAL SALES & SERVICE, LLC

National Labor Relations Board - Unpublished Board Decisions

Dec 9, 2015

15-CA-146938 (N.L.R.B. Dec. 9, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
EMPIRE JANITORIAL SALES
& SERVICE, LLC
and Case 15-CA-146938
UNITED LABOR UNIONS,
LOCAL 100
ORDER1
The Employer’s petition to revoke subpoena ad testificandum A-1-ML19TR,
addressed to Dayle A. Hernandez, 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. See Postal Workers Local 64 (USPS), 340 NLRB 912 (2003);
Offshore Mariners United, 338 NLRB 745 (2002).2 Further, the Employer has failed to

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 The disposition of the Employer’s petition to revoke is consistent with existing Board
law as reflected in Postal Workers and Offshore Mariners, which find subpoenas
identifying the case name and number to be sufficiently particular.
Member Miscimarra agrees that the Region has described with sufficient
particularity the evidence sought from the Employer’s manager, Dayle A. Hernandez,
based on the Region’s uncontradicted assertions in its brief in opposition to the petition
to revoke that it (1) attached to the subpoena a copy of the third amended charge and,
in a cover letter to Employer’s counsel, explained (2) which allegations will be the focus
of the testimony it seeks and (3) that a purpose of the interview will include Hernandez’
review of his proposed Board affidavit. In the view of Member Miscimarra, however, the
subpoena itself should describe with reasonable particularity the general topic(s) or
issue(s) that would be the subject of subpoenaed testimony or other evidence. See
Sec. 11(1) of the Act; Sec. 102.31(b) of the Board’s Rules. Member Miscimarra
believes the requirement of “particularity” requires more than merely giving the case
name and number of the proceeding in which the subpoena has been issued. He also
notes that the Board has moved in the direction of providing substantially more detail in
2
establish any other legal basis for revoking the subpoena.3 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).
Dated, Washington, D.C., December 9, 2015.
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER
LAUREN McFERRAN, MEMBER

remedial notices, for example, to “facilitate a better understanding,” including hyperlinks
and QR codes providing direct electronic access to the Board’s decision(s). Cf. Durham
School Services LP, 360 NLRB No. 85 (2014). Although subpoenas serve a different
purpose, Member Miscimarra believes subpoenas should provide fair notice to
recipients regarding the topic(s) or issue(s) deemed relevant to the testimony or other
evidence being sought.
3 The Employer argues that the subpoena should be revoked because, although the
subpoena purportedly seeks testimony, the accompanying cover letter indicates (in the
Employer’s view) that its purpose is “to force Mr. Hernandez to sign the poorly worded
43 page affidavit.” Petition at 4. However, neither the subpoena nor the cover letter
contains any indication that Mr. Hernandez will be “forced” to sign any document.
Indeed, the Employer does not deny that the Region has repeatedly urged Mr.
Hernandez to review the affidavit that he previously gave and revise it as necessary to
provide the Region with an accurate statement of the facts as known to him. If Mr.
Hernandez declines to review and sign the prior affidavit, he can instead provide fresh
testimony pursuant to the subpoena.