FCA - US LLC

National Labor Relations Board - Unpublished Board Decisions

Oct 31, 2017

08-CA-185825 (N.L.R.B. Oct. 31, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FCA US LLC
and Case 08-CA-185825
MEE SANDERS
LOCAL 12, INTERNATIONAL UNION,
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA (UAW), AFL-CIO
and Case 08-CB-185835
MEE SANDERS
ORDER1
The Petition to Revoke subpoena duces tecum B-1-V78WXZ, filed by FCA US
LLC, is denied.2 The subpoena seeks information relevant to the matters 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 Petitioner has failed to establish any other legal basis for

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 The Petitioner’s request that its petition to revoke be made part of the official record in
this case is denied without prejudice to renewal at the appropriate time in a formal
proceeding.
3 In considering the petition to revoke, we have evaluated the subpoena in light of the
Region’s modifications, as stated in its opposition brief, narrowing the temporal scope of
the subpoena requests and limiting them to the Toledo Assembly Complex, the facility
at which the Charging Party is employed.
Member Kaplan respectfully dissents from the Board majority’s denial of the
petition to revoke as to subpoena requests encompassed in the Region’s post-petition
modifications that dramatically narrowed temporal and geographical scopes. The
petition to revoke argued that the subpoena requests were overly broad, unduly
burdensome, lacking in specificity, and irrelevant. When subpoena requests are overly
2
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).
Dated, Washington, D.C., October 31, 2017
LAUREN McFERRAN, MEMBER
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER

broad or otherwise seek information that does not reasonably relate to matters under
investigation, and when a subpoenaed party’s petition to revoke raises appropriate
objections to the requests on that basis, Member Kaplan believes it is more appropriate
for the Board to grant the petition to revoke as to such requests, rather than denying the
petition to revoke (as the Board majority does here) based on a change that was
communicated only after the petition to revoke is under consideration by the Board.
See Sec. 11(1) (stating the Board “shall revoke” any subpoena where “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”). Finally,
Member Kaplan believes that granting a petition to revoke in the circumstances
presented here would be without prejudice to the potential issuance of a new subpoena
that is appropriate in scope (subject to applicable time limits and other requirements set
forth in the Act and the Board’s Rules and Regulations).
4 To the extent that the Petitioner asserts that no responsive evidence exists for certain
subpoena paragraphs, it is not required to produce subpoenaed evidence that it does
not possess, but the Petitioner is required to conduct a reasonable and diligent search
for all requested evidence, and as to requested evidence that the Petitioner determines
it does not possess, the Petitioner must affirmatively represent to the Region that no
responsive evidence exists. In addition, the Petitioner states that it did not retain certain
responsive documents. The Definitions and Instructions section of the subpoena states
at par. 10 the information that the Petitioner must provide regarding any such discarded
documents.
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.