KMAC, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 2017

18-CA-185912 (N.L.R.B. Dec. 22, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
KMAC, INC.
and Case 18-CA-185912
CONSTRUCTION AND GENERAL
LABORERS LOCAL 563
ORDER1
The petition to revoke subpoena duces tecum B-1-UXPOCR, filed by KMAC,
Inc., 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.2 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 In considering the petition to revoke, we have evaluated the subpoena in light of the
Region’s clarifications in its opposition brief as follows: for pars. 1, 2, and 6, defining
“unit work” as “all materials-handling, tending the hopper and pump, moving hoses,
installing sound matting, installing Ethofoam and expansion joints, prep work, set-up,
tear-down, and cleaning . . . on residential and commercial projects, where the
[Petitioner] is hired to install gypsum concrete floors”; prefacing par. 2 with the phrase
“documents reflecting the”; limiting par. 3 to contractors performing unit work (or
disputed unit work); limiting par. 4 to payroll records of employees performing unit work
(or disputed unit work); for par. 9, stating that it is seeking documents reflecting whether
the Petitioner’s directors, stockholders, owners, members, officers, managers, and
supervisors have an ownership interest or a supervisory or management role in
Acoustical Sound Floors, Inc.; and, for par. 13, removing the inadvertently included
phrase “any other listed entity created or in effect.”
Regarding subpoena par. 7, the Petitioner asserts that it does not possess
payroll records of its subcontractors’ employees who are not employees of the
Petitioner. The Petitioner is not required to produce evidence requested in the
subpoena that it does not possess, but the Petitioner is required to conduct a
reasonable and diligent search for all requested evidence. Further, with respect to
requested information not in the Petitioner’s possession or control, the subpoena
compels the Petitioner to request such information from its subcontractors, if necessary.
If the information does not exist, or if the subcontractors decline to provide the
2
revoking the subpoena. 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 22, 2017.
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
WILLIAM J. EMANUEL, MEMBER

information, the Petitioner must affirmatively represent this fact to the Region. See
Clear Channel Outdoor, Inc., 346 NLRB 696, 702 n. 10 (2006) (“In responding to a
subpoena, an individual is required to produce documents not only in his or her
possession, but any documents that he or she had a legal right to obtain,” citing
Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984)). Moreover, if the
subcontractors do not comply with a request for the information from the Petitioner,
nothing would prevent the Region from seeking that information directly from the
subcontractors.