Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, September 18, 2007

Subpoena Power of NLRB

The NLRB's power to subpoena is not challenged often. NLRB v. Champagne Drywall, Inc., ___F.Supp. 2d ___, 2007 WL 1673606 (D. Mass. 2007)(registration required), demonstrates why. In this case, the court enforced two subpoenas duces tecum in connection with an unfair labor practice investigation. The employer objected because although the data sought existed within the organization, it did not exist in the format sought by the NLRB-namely as a list.

The court followed circuit law authority concerning the subpoena power of the EEOC. EEOC subpoena authority is not limited to documents already in existence. Rather, the enabling statue granted the EEOC broad authority to require the production of "any evidence."

I believe that this decision and some of the decisions it sites are questionable. Since when does an opposing party have to organize evidence. It seems to me that the employer should have been ordered to disclose the raw data. It would then be up to the NLRB to put it in whatever useful form they desired.

Mitchell H. Rubinstein

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