Employers May Subpoena Records between Unions and Employees Acting as Agents for Unions

In a win for employers, the D.C. Circuit Court ruled that the National Labor Relations Board erred when it refused to allow an automotive parts retailer to subpoena an employee suspected of acting as union agent. In what seems to be a recent trend, the Board ordered the company to bargain with a group of employees even though the result of a union election was never certified. According to the company, the union organizing drive was rife with threats, harassment, and coercion by union agents, and the Company was entitled to a hearing to determine whether employees acting as union agents interfered with employee free choice during the election.

The Company sought information via subpoena about communications between the union and employees suspected to be agents of the union. The NLRB Hearing Officer vacated the subpoena alleging that it violated the employees’ collective bargaining rights. According to the D.C. Circuit Court, the Board’s responsibility is to weigh whether the information sought was of enough importance to counteract the potential loss of employee confidentiality, which it did not do by failing to review documents responsive to the subpoena in camera.

Even the General Counsel’s Guide to Hearing Officers requires subpoenaed information to be produced if it relates to any matter in question if it can provide background information or lead to other evidence potentially relevant to the inquiry. “The documents the company sought qualify on both counts: the documents relate to a matter in question – whether …employees were agents of the union – and the documents may have provided leads to other relevant evident,” the appellate court concluded.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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