January 2011 - National Labor Relations Board

11796 “FISHING EXPEDITION” AS A DEFENSEor notice of hearing, which is attached to the application as an exhibit. Oklahoma PressPublishing Co., 327 U.S. at 214–215. See also NLRB v. Carolina Food Processors, 81F.3d 507 (4th Cir. 1996).“For purposes of an administrative subpoena, the notion of relevancy is a broadone. . . . So long as the material requested ‘touches a matter under investigation,’ anadministrative subpoena will survive a challenge that the material is not relevant.”Sandsend Financial Consultants, Ltd. v. Federal Home Loan Bank Board, 878 F.2d 875,882 (5th Cir. 1989) (citation omitted) and cases cited therein; NLRB v. Alaska PulpCorp., 149 LRRM 2684, 2689 (D.D.C 1995); accord: NLRB v. Carolina FoodProcessors, 81 F.3d at 511. An investigative subpoena may properly seek evidenceregarding all issues under investigation, including potential defenses. NLRB v. North BayPlumbing, 102 F.3d at 1008. A party seeking to have a subpoena quashed must establishthat “the subpoena is intended solely to serve purposes outside the purview of thejurisdiction of the issuing agency.” NLRB v. Interstate Dress Carriers, Inc., 610 F.2d 99,112 (3d Cir. 1979).11796 “Fishing Expedition” as a DefenseThe Board agent should carefully draft subpoenas in order to avoid potentialarguments that the subpoena constitutes a “fishing expedition.” The subpoena shoulddescribe all documents sought with respect to content and time period. The OklahomaPress decision is especially instructive regarding whether a subpoena constitutes a“fishing expedition.”However, the Board is entitled to obtain all relevant information requested, aslong as compliance with the subpoena does not impose an “undue burden” on therecipient. With respect to assertions of “undue burden,” the courts have made clear that“[s]ome burden on subpoenaed parties is to be expected and is necessary in thefurtherance of the agency’s legitimate inquiry and the public interest. . . . The question iswhether the demand is unduly burdensome or unreasonably broad.” FTC v. Texaco, 555F.2d 862, 882 (D.C. Cir. 1977), cert. denied sub nom. Standard Oil of California v. FTC,431 U.S. 974 (1977) (emphasis in original). The burden of demonstratingunreasonableness or undue burden clearly rests with the party asked to produce theinformation and “[t]hat burden is not easily met where . . . the agency inquiry is pursuantto a lawful purpose and the requested documents are relevant to that purpose.” Id. at 882and cases cited there. In order to show that a subpoena is unduly burdensome, thesubpoenaed party must show that the subpoena seriously disrupts regular businessoperations. See EEOC v. Maryland Cup Corp., 785 F.2d 471, 477 (4th Cir.), cert. denied479 U.S. 815 (1986); NLRB v. Carolina Food Processors, 81 F.3d at 513.11798 Subpoena Enforcement Procedures11798.1 Order to Show Cause ProcedureUnder Section 11(2) of the NLRA, subpoena enforcement proceedings arecommenced by the filing of an application by the Board. The courts repeatedly have heldRevised 01/11