International Union of Elevator Constructors No. 1, of New York City and Vicinity (Otis Elevator)

National Labor Relations Board - Board Decisions

Aug 29, 2014

29-CB-084077 (N.L.R.B. Aug. 29, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS, NO. 1, OF NEW YORK CITY
AND VICINITY (OTIS ELEVATOR)
and Case 29-CB-084077
BRIAN KELLY, JR.
ORDER
Otis Elevator Company’s petition to revoke subpoena ad testificandum A-950138
issued to Robert Spinnato 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. See Postal Workers Local 64 (USPS), 340 NLRB 912 (2003);
Offshore Mariners United, 338 NLRB 745 (2002).1 Further, the Petitioner has failed to

1 In any event, we note that the Region previously advised Robert Spinnato, through
counsel, of the subject matter of the unfair labor practice charge and the nature of the
testimony sought.
Member Miscimarra agrees that the General Counsel has described with
sufficient particularity the evidence sought, but solely because the General Counsel’s
opposition (to the petition to revoke the subpoena) has, at this point, described the
nature of the charge (involving the Union’s failure to refer the Charging Party for
employment through its hiring hall for reasons other than the failure to tender uniformly
required initiation fees and periodic dues) and has provided general information
regarding the subject matter deemed relevant to the testimony sought from the
subpoenaed party. In Member Miscimarra’s view, however, the subpoena itself should
describe with reasonable particularity the general topic(s) or issue(s) that would be the
subject of subpoenaed testimony or other evidence. See Sec. 11(1) of the Act; Sec.
102.31(b) of the Board’s Rules. Member Miscimarra believes the requirement of
“particularity” requires more than merely giving the case name and number of the
proceeding in which the subpoena has been issued. He also notes that the Board has
moved in the direction of providing substantially more detail in remedial notices, for
example, to “facilitate a better understanding,” including hyperlinks and QR codes
providing direct electronic access to the Board’s decision(s). Cf. Durham School
2
establish any other legal basis for revoking the subpoenas.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).
Dated, Washington, D.C., August 29, 2014.
MARK GASTON PEARCE, CHAIRMAN
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER

Services LP, 360 NLRB No. 85 (2014). Although subpoenas serve a different purpose,
Member Miscimarra believes they should provide fair notice to recipients regarding the
topic(s) or issue(s) deemed relevant to the testimony or other evidence being sought.
2 The Petitioner’s argument that the Board was without authority to issue the subpoena
because it lacked a quorum at that time is without merit. Sec. 11(1) of the Act states that
“[t]he Board, or any member thereof, shall upon application of any party to such
proceedings, forthwith issue to such party subpoenas requiring the attendance and
testimony of witnesses or the production of any evidence in such proceeding or
investigation requested in such application.” Here, Chairman Pearce issued the
subpoena in accordance with the Act.
Further, the Petitioner’s argument that the appointment of James G. Paulsen as the
Regional Director of Region 29 was invalid because the Board lacked a quorum at that
time is without merit. Paulsen was appointed as Regional Director on December 28,
2011, at a time when the Board had a quorum.