NLRB Enforces Subpoena about Alleged Joint Employer Relationship with Nothing More than Mere Allegation of Joint Employer Status.

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.

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.