Stahl Specialty Company

National Labor Relations Board - Unpublished Board Decisions

Mar 26, 2013

17-CA-088639 (N.L.R.B. Mar. 26, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
STAHL SPECIALTY COMPANY
and Case 17-CA-088639
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL#1464
affiliated with the INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO
ORDER
The Respondent’s Request for Special Permission to Appeal Administrative Law
Judge Christine Dibble’s ruling denying the Respondent’s petitions to revoke the
subpoenas duces tecum issued by the Acting General Counsel and the Union is
denied.1 We find that the Respondent has failed to establish that the judge abused her
discretion in denying the petitions.2

1 In addition, we deny the Respondent’s motion to stay this proceeding or, in the
alternative, to assign this case to a different administrative law judge. The Respondent
contends that the Board lacks a quorum because the President’s recess appointments
to the Board are constitutionally invalid, and therefore has no authority to act. In
addition, the Respondent argues that the appointment of administrative law judge
Christine Dibble by this Board is therefore null and void, and requests that the Board act
by assigning this case to a different administrative judge. We recognize that the United
States Court of Appeals for the District of Columbia Circuit has concluded that the
President’s recess appointments were not valid. See Noel Canning v. NLRB, 705 F.3d
490 (D.C. Cir. 2013). However, as the court itself acknowledged, its decision conflicts
with rulings of at least three other courts of appeals. See Evans v. Stephens, 387 F.3d
1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d
1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). This question
remains in litigation, and pending a definitive resolution, the Board is charged to fulfill its
responsibilities under the Act.
2 In denying the Special Appeal, we clarify that the Respondent is directed to provide all
responsive documents and communications available without resort to analysis of email
backup tapes, subject to the Acting General Counsel and the Union having the
2
Dated, Washington, D.C., March 26, 2013
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER

opportunity to persuade the judge that an additional search is necessary. We further
note that to the extent the Respondent has provided some of the requested material, it
is not required to do so again, provided that the Respondent 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.
We do not pass on the Acting General Counsel’s March 21, 2013 Motion for the
Admission of Charging Party Exhibits 9, 10, 11 and 13 into the Record. That motion
should more appropriately be raised to the judge.