American Postal Workers Local 64

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912 American Postal Workers Union Local 64 (United States Postal Service) and Teresa S. Taft. Case 21–CB–13333(P) October 10, 2003 ORDER DENYING PETITION TO REVOKE SUBPOENA CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH This matter is before the Board pursuant to the Union’s petition to revoke two investigatory subpoenas ad testifi- candum (A-607736 and A-607737), which were served by the Regional Director on January 24, 2003. The subpoenas were served on Yolanda Elder and Arthur Clark, the Un- ion’s general president and vice president, respectively, in connection with the Regional Office’s investigation of an unfair labor practice charge, Case 21–CB–13333(P), filed against the Union by Teresa Taft. The charge alleges that the Union violated Section 8(b)(1)(A) of the Act by: (1) removing Taft from her position as union steward because her husband had filed unfair labor practice charges against the Union; (2) prohibiting her from attending mandatory union steward training; and (3) failing to provide her with notices of the time and location of Union Women’s Com- mittee meetings. On January 27, 2003, the Union filed a timely petition to revoke the two subpoenas. The Union’s petition set forth the following grounds for revoking the subpoenas: The Union has already cooperated with the Region by providing two (2) written statements setting forth its position, as well as numerous documents, with regard to the above-entitled charge. In addition, [the Union is] unaware of any law that requires a party to produce the Charged Party for the purpose of providing an affi- davit to the Region during the investigation of an un- fair labor practice charge against that party. Moreover, [the Regional investigator’s] desire to hear Ms. Elder and Mr. Clarke’s recollection of an alleged conversa- tion with the Charging Party is insufficient to warrant the issuance of subpoenas. As always, the region has the option of issuing a complaint based on the evi- dence (or lack thereof) it has already compiled. We deny the Union’s petition to revoke. Section 11(1) of the Act specifically authorizes the issuance of investiga- tory subpoenas seeking testimony,1 and the Board’s author- 1 Sec. 11(1) provides, in relevant part, as follows: The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investi- gated or proceeded against that relates to any matter under in- vestigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forth- ity to issue such subpoenas is well established. See Off- shore Mariners United, 338 NLRB 745, 746 (2002); NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005, 1007–1008 (9th Cir. 1996). Our dissenting colleague would grant the Union’s peti- tion to revoke the subpoenas on the grounds that the Re- gional Director has failed to show that the subpoenaed tes- timony is relevant to the investigation, and that the subpoe- nas do not describe with particularity the evidence being sought, as required by Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules and Regulations. For the reasons set forth below, we disagree. As an initial matter, we find it significant that the Union itself has not raised the issues addressed by our colleague. Our colleague states his belief that the Union has suffi- ciently raised the issues; however, he fails to identify any basis in the Union’s petition to revoke to support that be- lief. Nor are we able to discern any. Our colleague alternatively asserts that the Board has a responsibility to assure that its subpoenas are in compliance with Board Rules. The Board surely has that responsibil- ity; but we should exercise it with appropriate restraint by generally limiting our review to the issues and arguments raised by the parties.2 There are both legal (procedural due process) and practical (administrative economy and effi- ciency) reasons for exercising such judicial restraint.3 As our colleague has raised the issues, however, we will address them. First, the subpoenas clearly “relate[] to [a] matter under investigation or in question” as required by Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules. The Regional Director asserts that both of the subpoenaed union officials were present during the underlying events alleged in the charge, and that both are being subpoenaed to give their accounts of those events so with issue to such party subpoenas requiring attendance and tes- timony of witnesses or the production of any evidence in such proceeding or investigation requested in such application. Within five days after the service of the subpoena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpoena if in its opinion 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. 2 See, e.g., Avne Systems, Inc., 331 NLRB 1352, 1354 (2000) (Board Member’s dissenting argument not made by excepting party itself is not procedurally before the Board). 3 We perceive no harm to the effective administration of the Act here by enforcing subpoenas that even the party seeking revocation does not contend are too vague or seek irrelevant information. On the other hand, we do believe such harm would result if we adopted our col- league’s position and routinely revoked subpoenas on grounds not asserted by the party seeking revocation. 340 NLRB No. 98 POSTAL WORKERS LOCAL 64 (USPS) 913 that the Regional Director may complete the investigation and make a determination whether to issue a complaint. No further demonstration of relevance is required. Cf. RNR Enterprises, Inc. v. SEC, 122 F.3d 93 (2d Cir. 1997), cert. denied 522 U.S. 958 (1997) (relevance of investiga- tory subpoenas ad testificandum was established by SEC attorney’s declaration that the subpoenaed testimony would assist in determining whether there had been violations of the Federal securities laws as described in the SEC’s formal order directing an investigation, and specifically in connec- tion with RNR’s 1995 offering of $5 million of unregis- tered securities to the public). Second, the subpoenas describe with sufficient particu- larity the testimony sought. The subpoenas ad testifican- dum specifically identify the unfair labor practice case in- volving the Union—American Postal Workers Union, Lo- cal 64, Case 21–CB–13333(P)—regarding which the union officials are required to testify. Again, nothing more is required. See Offshore Mariners United, supra (subpoena ad testificandum relevant and not overly broad or vague where subpoena informed witness that his testimony was needed pursuant to cited unfair labor practice charges); see also RNR Enterprises, Inc. v. SEC, supra.4 Moreover, it is clear that the Union was aware of the testimony being sought by the subpoenas, as its petition to revoke describes it (“Ms. Elder and Mr. Clarke’s recollection of an alleged conversation with the Charging Party.”) Accordingly, we deny the Union’s petition to revoke the subpoenas. CHAIRMAN BATTISTA, dissenting. I would grant the Union’s Petition to Revoke. The charge alleges essentially that the Union, for discriminatory reasons, removed the Charging Party from her stewardship. The Regional Director tells us only that the two subpoe- naed witnesses have not “provide[d] sufficient information regarding certain underlying events,” and thus “further evidence” is required. We do not know what the “informa- tion” is, what the certain “underlying events” are, or what the “further evidence” is.1 I believe that a more specific showing of relevance is required. Section 102.31(b) requires that the subpoena must “de- scribe with sufficient particularity the evidence whose pro- 4 Contrary to our colleague’s suggestion, Offshore Mariners is not distinguishable. Like here, the testimonial subpoena in that case simply cited the case name and number. The more particular description of the testimony being sought was not set forth in the subpoena itself; rather, as here, it was set forth in the Regional Director’s opposition to the petition to revoke. 1 Concededly, there is a suggestion that one specific matter involved is an alleged conversation between a subpoenaed witness and the Charging Party. However, this is a matter raised by the Union, not by the party asking for the subpoena. In addition, the subpoena request is not confined to that one item. duction is required.” See Section 102.31(b) of the Board’s Rules. In my view, the general references to “underlying events,” “further evidence” and “information” fall far short of the “particularity” that is required. My colleagues say that it is sufficient that the subpoena simply identify the name and number of the case under investigation. I disagree. The case caption itself would set forth that information and, according to my colleagues, nothing more is required. In my view, the mere naming of the case does not, standing alone, “describe with sufficient particularity the evidence whose production is required.” My colleagues cite Offshore Mariners United, supra, as support for their view. However, that case offers no such support. In that 8(b)(4)(B) case, a union official had writ- ten a letter to two neutral employers who did business with a primary employer. The letter described the alleged anti- union activity of the primary and asked to meet with the neutrals. The subpoena named the letter-writer and sought his testimony concerning the letter. The subpoena was therefore narrowly focused, quite unlike the “underlying events” and “further evidence” involved here. The sub- poena was therefore particularized. In our case, as set forth above, the subpoena is vague and general. My colleagues apparently believe that a subpoena need not set forth with particularity the evidence whose produc- tion is required. In their view, it is sufficient if the particu- larity is set forth in the opposition to revoke the subpoena. Of course, this is directly contrary to Rule 102.31(b), which requires that the subpoena itself describe the information with particularity. In addition, the Rule comports with general precepts concerning subpoenas. That is, it makes no sense to permit a subpoena to be vague and indefinite and to have the gaps filled in only after motions and countermotions. Finally, my colleagues say that the Union has not “spe- cifically” raised the issues discussed above. I believe that the Union has sufficiently raised the issue. In any event, it is the Board’s subpoena that is being issued, and it is the Board’s responsibility to assure that its subpoenas are in compliance with Board Rules. I agree with my colleagues’ observation that the Board should exercise its responsibilities “with appropriate re- straint.” However where, as here, a subpoena wholly fails to comport with a Rule, it is surely the Board’s responsi- bility to point out the failure and to act accordingly.2 2 Contrary to the suggestion of my colleagues I would not “rou- tinely” revoke a subpoena on a ground that is not asserted by the party seeking revocation. Rather, I would revoke the subpoena here because it utterly fails to comport with the Board’s Rule.