GARGIULO PRODUCE

National Labor Relations Board - Board Decisions

Mar 8, 2017

22-CA-177431 (N.L.R.B. Mar. 8, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
GARGIULO PRODUCE
and Case 22-CA-177431
LOCAL 108, RETAIL, WHOLESALE,
AND DEPARTMENT STORE UNION,
UNITED FOOD & COMMERCIAL WORKERS
ORDER
The Employer’s Petition to Revoke subpoena duces tecum B-1-TOMVSH is
denied. 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. Further,
the Employer has failed to establish any other legal basis for revoking the subpoena.1
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., March 8, 2017.

1 In considering the petition to revoke, we have evaluated the subpoena in light
of the Region’s withdrawal of par. 3 due to the Employer’s representation that no
responsive documents exist, and the Region’s statements that it no longer seeks
documents pertaining to Peter Gargiulo in pars. 5 and 7 or Salvador Oliveros in
par. 7, in light of the Employer’s stipulation that those two individuals are
supervisors within the meaning of Sec. 2(11) of the Act. We also acknowledge
the Region’s stipulation that the Employer may redact sensitive personal
information, such as Social Security numbers. Contrary to our dissenting
colleague’s assumption, the Region’s modification of the subpoena does not
establish that the subpoena initially was overbroad, and we find that it was not.
Instead, it appears that the Region’s modifications are designed to promote
efficiency and provide greater clarity to the parties. If after such redactions the
Employer still has legitimate privacy concerns as to specific information or
documents sought by the subpoena, it is free to identify such information or
documents and seek a confidentiality agreement from the Region. Finally, it
appears that the reference to “personal records” in par. 2 is a typographical error,
and we have interpreted it as a reference to personnel records.
2
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
ACTING CHAIRMAN MISCIMARRA, dissenting in part.
I respectfully dissent in part from the Board majority’s denial of the Employer’s
petition to revoke, which in part reflects the Region’s statement, in its brief opposing the
petition to revoke, that “the Region does not seek, and the Employer can redact,
personal identification information such as employee Social Security numbers”
contained in the subpoenaed personnel files. This statement in the Region’s opposition
brief is contradicted by the subpoena’s specific instructions, which provide that the
subpoena “contemplates production of responsive documents in their entirety, without
abbreviation, redaction, deletion or expurgation” (emphasis added). Moreover, I
disagree with the Board’s practice that often permits an overly broad subpoena request
to be “clarified” by the Region after a party has filed a meritorious petition to revoke,
which then prompts the Board to deny the petition. In my view, this practice encourages
the filing of subpoenas that are not appropriately tailored to matters under investigation,
which in turn needlessly leads to Board intervention in many subpoena disputes that
could have been avoided had the subpoena requests been crafted in a manner that
appropriately conforms to matters relevant to the charge. Additionally, I believe this
practice creates the appearance of unfairness by permitting one side (the Region’s
attorneys, who are representatives of the General Counsel) to avoid having a subpoena
revoked by making an after-the-fact “change” that is communicated in briefing.
Accordingly, in the instant case, I would grant the petition to revoke as to requests that
were broad enough to encompass irrelevant and/or personal identification information,
3
notwithstanding the limitation expressed in the Region’s opposition brief, without
prejudice to the Region’s right to issue new or amended subpoena requests that are
narrower in scope.
PHILIP A. MISCIMARRA, ACTING CHAIRMAN