Red Apple 180 Myrtle Avenue Development, LLC

National Labor Relations Board - Board Decisions

Apr 20, 2017

29-CA-184816 (N.L.R.B. Apr. 20, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
RED APPLE 180 MYRTLE AVENUE
DEVELOPMENT, LLC
and Cases 29-CA-184816
29-CA-188888
LOCAL 32BJ, SEIU
LOCAL 621, UWA
and Case 29-CB-184813
LOCAL 32BJ, SEIU
ORDER
The Petition to Revoke subpoenas ad testificandum addressed to Ndue Shabani
(A-1-V335MR), Francisco Jiminez, (A-1-V331CB), Carlos Taylor (A-1-V309BH) and
Elgin Weston (A-1-V31Q4V), is denied. The Petitioner, Red Apple 180 Myrtle Avenue
Development, LLC, does not have standing to file a petition to revoke a subpoena that
is addressed to a third party unless it asserts that the requested information is protected
by a privilege or a right of privacy.1 The Petitioner has not argued that the information
sought from the employees is protected by any privilege. Although the Petitioner
argues that there is “no reason to impinge on the privacy rights” of the employees if the
Board is already in possession of the information (Petition to Revoke, p. 6), it has not
established that it possesses any personal privacy rights to the information sought from
the employees.

1 “Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is
not a party to the action unless the party claims some personal right or privilege with regard to
the documents sought.” In re Grand Jury Subpoena John Doe, No. 05GJ1318, 584 F.3d 175,
184 fn. 14 (4th Cir. 2009), citing 9A Wright, Miller & Cooper, Federal Practice and Procedure §
2459 (3d ed. 1998).
2
In addition, even assuming that the Petitioner had standing to file the petition, we
find that it is lacking in merit. The subpoenas seek information relevant to the matters
under investigation and describe 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 Petitioner has failed to establish
any other legal basis for revoking the subpoenas. 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., April 20, 2017
PHILIP A. MISCIMARRA, ACTING CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER

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.
Acting Chairman Miscimarra agrees that the General Counsel has described with
sufficient particularity the evidence sought, but solely because the General Counsel’s
opposition to the petition to revoke the subpoenas has, at this point, described the nature of the
charges (involving allegations of unlawfully solicited union authorization cards and unlawful
recognition) and has provided general information regarding the subject matter deemed
relevant to the testimony sought from the subpoenaed individuals. In Acting Chairman
Miscimarra’s view, 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. Acting Chairman
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 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, Acting Chairman
Miscimarra believes they should provide fair notice to recipients regarding the topic(s) or
issue(s) deemed relevant to the testimony or other evidence being sought.