The National Labor Relations Board has denied petitions to revoke subpoenas that were issued by an NLRB Regional Director to two companies seeking information about a possible joint employer relationship between the two employers. You read that right. The two pro-labor NLRB Board Members enforced the subpoenas despite the union’s failure to articulate any facts about the joint employer allegation.
This is remarkable. The charge referred to the employers as alter egos, single employer, and joint employers, but the unfair labor practice charge did not have any additional information. Per the NLRB, the subpoenas “lie well within the scope of the Board’s broad investigative authority, which extends not only to the substantive allegations of the charge, but to ‘any matter under investigation or in question’ in the proceeding.” The NLRB continued, “nothing in Section 11 of the Act or Sec. 102.31(b) of the Board’s Rules can be read to impose a requirement that the Regional Director articulate ‘an objective factual basis’ in order to compel the production of information that is necessary to investigate a pending unfair labor practice charge.”
Once again, employers are on the losing end of the current NLRB pro-union majority Thankfully acting-chair Miscimarra sticks up for employer’s rights (albeit in dissenting opinions only). Member Miscimarra wrote that a subpoena seeking documents pertaining to an alleged joint-employer or single-employer status of a charged party “requires more…than merely stating the name of possible single or joint employers on the face of the charge.” Specifically, the General Counsel must be able to articulate “an objective factual basis supporting such an inquiry.” Member Miscimarra found the General Counsel failed to do so here.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.