H&M INTERNATIONAL TRANSPORTATION, INC.

National Labor Relations Board - Board Decisions

Apr 1, 2019

22-CA-089596 (N.L.R.B. Apr. 1, 2019)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
H&M TRANSPORTATION, INC.
and Case 22-CA-089596
22-CA-095095
HARRY NEILAN
ORDER1
Norfolk Southern Railway Company’s Petition to Revoke subpoena duces tecum B-
1-13023VL is denied. The subpoena seeks information relevant to the matters under
investigation and describes with sufficient particularity the evidence sought, as required by
Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules and Regulations.
Further, the Petitioner has failed to establish any other legal basis for revoking the
subpoena.2 See generally NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005 (9th Cir.
1996); NLRB v. Carolina Food Processors, Inc., 81 F.3d 507 (4th Cir. 1996).

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 Norfolk Southern’s claim that the Board lacks jurisdiction over it under Section 2(2) of the
National Labor Relations Act (the Act) because it is an employer governed by the Railway
Labor Act does not provide a basis for revoking the subpoena. Section 11 of the Act
provides, in relevant part, that “[t]he Board . . . shall at all reasonable times have access to,
for the purpose of examination, and the right to copy any evidence of any person being
investigated or proceeded against that relates to any matter under investigation or in
question.” Here, the subpoena seeks information necessary to determine whether H&M is
in contempt of the Court’s Order in H&M Int’l Transp. Inc., Case No. 16-1317 (D.C. Cir.
March 20, 2018), enforcing the Board’s decision in 363 NLRB No. 139 (2016), by failing to
reinstate four employees who were unlawfully terminated, or whether H&M is acting in
concert with Norfolk Southern to violate that Order. Thus, Norfolk Southern is a “person
being investigated or proceeded against,” and therefore subject the Board’s subpoena
power.
With respect to Norfolk Southern’s assertion that the subpoena seeks documents
that are not in its possession, we note that the subpoena cannot compel Norfolk Southern
to produce documents that it does not possess. However, the subpoena does compel
Norfolk Southern to conduct a thorough search for all of the requested information. If the
2
Dated, Washington, D.C., April 1, 2019.
JOHN F. RING, CHAIRMAN
LAUREN McFERRAN, MEMBER
MARVIN E. KAPLAN, MEMBER

information is found, it must be produced. If the information cannot be found, Norfolk
Southern must affirmatively represent to the Region that no responsive documents exist.