Inventure Foods, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jan 25, 2017

25-CA-180283 (N.L.R.B. Jan. 25, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
INVENTURE FOODS, INC.
and Case 25-CA-180283
STEVEN ESPY
ORDER
The Employer’s Petition to Revoke subpoena duces tecum B-1-TFCBTP 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

1 In considering the petition to revoke, we have evaluated the subpoena in light
of the Region’s withdrawal of paragraphs 1 and 2 due to the Employer’s
subsequent submission of a commerce questionnaire, and the Region’s
statement that it has informed the Employer that it is willing to limit the scope of
its requests to the Employer’s facility in Bluffton, Indiana. Contrary to our
dissenting colleague's assumption, the Region's offer to limit the scope of the
subpoena does not establish that the subpoena initially was overbroad, and we
find that it was not. Rather, the Region's modifications appear merely to promote
efficiency and provide further clarity to the parties. Last, we observe that in this
case the Employer did not engage with the Region at all before the issuance of
the subpoena, raising geographic scope issues for the first time in its petition to
revoke.
Acting Chairman Miscimarra would grant the petition to revoke as to
paragraph 7 (requesting “[a]ll handbooks or other documents which set forth the
Employer’s employment policies at any time during the period covered by this
subpoena”) except for those handbook provisions that reasonably relate to the
charge allegations regarding unlawful discipline and termination. See Allied
Waste Services of Massachusetts, LLC, Cases 01-CA-123082, -126843 (Dec.
31, 2014). Additionally, Acting Chairman Miscimarra respectfully dissents from
the Board majority’s denial of the petition to revoke as to requests that
encompass locations other than Bluffton, Indiana. When subpoena requests are
overly 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, Acting Chairman
Miscimarra believes it is more appropriate for the Board to grant the petition to
2
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., January 25, 2017.
PHILIP A. MISCIMARRA, ACTING CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER

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”). Regarding the majority’s statement that the Region’s geographic
clarification served “merely to promote efficiency and provide further clarity to the
parties,” he believes these efforts must be undertaken before disputes regarding
a subpoena’s scope are presented to the Board in a party’s petition to revoke.
Although his colleagues fault the Employer for failing to engage the Region
before the issuance of the subpoena, Acting Chairman Miscimarra believes that
whether or what type of informal exchanges may have occurred before this
subpoena’s issuance is unrelated to the appropriate scope of the subpoena
request; and the appropriate scope of subpoena requests should be addressed
by the Region in the first instance when crafting the subpoena. Finally, Acting
Chairman Miscimarra 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).