January 2011 - National Labor Relations Board

11798 SUBPOENA ENFORCEMENT PROCEDURESthat subpoena enforcement proceedings need not be commenced by service of a summonsand complaint normally required to commence a civil suit pursuant to Rule 4 of theFederal Rules of Civil Procedure. Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450,451 (6th Cir. 1941); Cudahy Packing Co. v. NLRB, 117 F.2d 692, 694 (10th Cir. 1941);NLRB v. D. L. Baker, enfd. mem. 166 F.3d 333 (4th Cir. 1998).The local rules for the U.S. district court in which the application for enforcementwill be filed should be reviewed so that the application conforms to the proceduralrequirements of that court. In addition, the Regional Office should ensure that all courtfilings comply with the federal rules regarding protecting personal identificationinformation in court filings. See GC Memo 09-02.The Manual contains patterns to be used in subpoena enforcement proceedings.Sec. 11800.1. The order to show cause set forth in Sec. 11806.1 as Pattern 53, whensigned by the court, will provide explicit authorization for service to be accomplishedpursuant to Rule 5 of the Federal Rules or by certified mail. Absent such a signed orderto show cause, personal service of the application and supporting papers should beobtained in order to avoid unnecessary disputes concerning the validity of service.11798.2 Motion ProcedureAlternatively, an application for enforcement can be treated by the RegionalOffice as a motion, without obtaining an order to show cause. In such circumstances, theRegional Office should obtain personal service of the application and supporting papersin order to avoid unnecessary disputes concerning the validity of service.While this approach may be used in any such subpoena enforcement action, it canbe particularly useful in situations where (a) the local district court rules permit a movingparty to set the hearing date at the time a motion is filed and (b) the Regional Office isseeking summary enforcement of a subpoena, based upon the failure of the subpoenaedparty to file with the Board a timely petition to revoke the subpoena. But see Sec.11800.2(c) below, noting cases where subpoenaed parties have been permitted to raise forthe first time in court constitutional and privilege defenses.Advice and assistance on the use of this motion procedure may be obtained fromthe Special Litigation and Contempt Litigation and Compliance Branches. The ContemptLitigation and Compliance Branch has had experience in treating the application as amotion and can supply sample pleadings.11798.3 Recovery of Attorneys Fees and CostsIn appropriate circumstances, the Board may obtain recovery of its costs andattorneys’ fees related to subpoena enforcement actions. 5 In such cases, the award ofattorneys’ fees for Board attorneys are calculated based on “prevailing market rates,” i.e.,5 See, e.g., NLRB v. Cable Car Advertisers, Inc., 319 F.Supp.2d 991 (N.D.Cal. 2004); NLRB v. BeairdCo., 2007 WL 855344 (W.D.La.); NLRB v. Baywatch Security & Investigations, 2005 WL 1155109(S.D.Tex.); NLRB v. Coughlin, 176 LRRM 3197 (S.D.Ill 2005); Brooklyn Manor Corp. v. NLRB, 1999 WL1011935 (E.D.N.Y.).Revised 01/11