New York Party Shuttle, LLC - Decision Summary

New York Party Shuttle, LLC (02-CA-073340)New York, NY, October 23, 2014. The Board denied the Employer's petition to revoke a subpoena duces tecum.The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Respondent failed to establish any other legal basis for revoking the subpoena. The Board denied the petition on the merits and found it unnecessary to pass on whether the petition was timely filed, and it evaluated the subpoena as modified by the Region's agreement to accept drivers' records with wages and salaries redacted.In addition, Member Johnson noted that he typically finds cost of compliance to be a relevant issue in an undue burden analysis.However, here, in the context of a compliance proceeding after a Board order has been enforced by a federal court of appeals, Member Johnson found that the Respondent needed to provide some evidentiary support or at least specific calculations behind its assertion of high cost, beyond a generalized statement and related representations in its unsworn pleadings that compliance would cost $20,000.00. In addition, the Board noted that although its underlying Decision and Order, 359 NLRB No. 112 (2013), enfd. No.13-60364 (5th Cir. 2013), was decided by a panel that included two persons whose appointments to the Board were held to be invalid by the United States Supreme Court in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Fifth Circuit's Order upholding the Board's Decision and Order became final prior to the Supreme Court's decision in NLRB v. Noel Canning, supra. In these circumstances, the Board regarded the matters finally resolved by the court of appeals as res judicata in this proceeding, citing Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374-378 (1940); Nemaizer v. Baker, 793 F.2d 58, 65 (2d Cir. 1986) (cited with approval in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)); see also The Lorge School, 355 NLRB 558, 558 fn. 1 (2010). Moreover, the Board noted that under Sec. 10(e) of the Act, the Board has no jurisdiction to modify an Order that has been enforced by a court of appeals because, upon the filing of the record with the court of appeals, the jurisdiction of that court is exclusive and its judgment and decree are final, subject to review only by the Supreme Court, citingScepter Ingot Castings, Inc., 341 NLRB 997, 997 (2004) (citing cases), enfd. sub nom.Scepter, Inc. v. NLRB, 448 F.3d 388 (D.C. Cir.2006)and noting that Sec. 10(e) states, in relevant part: "Upon the filing of the record with [the United States court of appeals] the jurisdiction of the court shall be exclusive and its judgment and decree shall be final," except for potential further review by the Supreme Court. 29 U.S.C. § 160(e). Chargefiled by an individual.Members Hirozawa, Johnson, and Schiffer participated.