National Labor Relations Board v. Sheet Metal Workers Int'l Association, Local 293

Filing 26

ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER REQUIRING OBEDIENCE TO SUBPOENA DUCES TECUM re 22 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/10/11. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications shall be served by First Class Mail at the addresses of record on May 11, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
vs.
SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION,
LOCAL 293,
Respondent.
_____________________________

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Civil No. 11-00290 SOM/BMK
ORDER AFFIRMING MAGISTRATE
JUDGE’S ORDER REQUIRING
OBEDIENCE TO SUBPOENA DUCES
TECUM

ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER
REQUIRING OBEDIENCE TO SUBPOENA DUCES TECUM
I.

INTRODUCTION.
Respondent Sheet Metal Workers International

Association, Local 293 (“SMW”), objects to the Magistrate Judge’s
order requiring SMW to comply with Subpoena Duces Tecum No. B560096 (“subpoena”).

This subpoena directs SMW to produce

certain materials relating to an unfair labor practices
investigation pending before the National Labor Relations Board
(the “Board”).
On February 25, 2011, the Board applied for an order
requiring obedience to Subpoenas Duces Tecum No. B-560096.

On

April 19, 2011, after a hearing on the matter, Magistrate Judge
Barry M. Kurren granted the order, concluding that the Board had
satisfied the test for issuing an agency subpoena.

On the same

day, Magistrate Judge Kurren entered a written order requiring
SMW to obey the subpoena.

SMW now objects to that order, arguing that Magistrate
Judge Kurren committed factual and legal mistakes.

SMW repeats

the arguments in its prior Opposition and claims, among other
things, that the subpoena violates procedural requirements.

SMW

also contends that Magistrate Judge Kurren failed to make a
factual finding regarding the Board’s bias.

Pursuant to Local

Rule 7.2(d), this court finds this matter suitable for
disposition without a hearing.

The court affirms Magistrate

Judge Kurren.
II.

BACKGROUND FACTS.
On June 9, 2010, Michael Andreozzi filed an unfair

labor practice charge against SMW in the Board’s Subregion 37
office in Honolulu, Hawaii.

See Declaration of Meredith Burns

(“Burns Decl.”) ¶ 3, ECF No. 2, Ex. 1.

Andreozzi alleged that

SMW had failed to fairly represent him in the course of operating
its hiring hall by, among other things, failing to “dispatch him
to work while dispatching other workers lower on the list.”
ECF No. 2, Ex. 1A.

See

The Board is currently conducting an

investigation to determine whether SMW violated or is violating
Andreozzi’s rights under the National Labor Relations Act (the
“Act”) in Board Case 37-CB-2030.

See Burns Decl. ¶ 5.

On June 29, 2010, Board Agent Jeff F. Beerman (“Agent
Beerman”) mailed and faxed a request for evidence in relation to
this investigation to SMW’s attorney, Charles K.Y. Khim

2

(“Attorney Khim”).

See id. ¶ 6; ECF No. 2, Ex. 1C.

On July 15,

2010, Agent Beerman sent a follow-up request for evidence.
See Burns Decl. ¶ 7; ECF No. 2, Ex. 1D.

On July 30, 2010,

Attorney Khim sent Agent Beerman a letter setting forth SMW’s
position on the allegations, but provided little of the requested
information.

See Burns Decl. ¶ 8; ECF No. 2, Ex. 1E.

On the

same day, the Board issued Subpoena Duces Tecum No. B-560096 at
the request of Agent Beerman.
Ex. 1F.

See Burns Decl. ¶ 9; ECF No. 2,

On July 30, 2010, Agent Beerman delivered a courtesy

copy of the subpoena to Attorney Khim via electronic mail and
regular mail.

See Burns Decl. ¶ 10; ECF No. 2, Ex. 1G.

On August 6, 2010, the Board served SMW with Subpoena
Duces Tecum No. B-560096.
1H.

See Burns Decl. ¶ 11; ECF No. 2, Ex.

The subpoena required the submission of documents and sworn

testimony in connection with the pending investigation.
See Burns Decl. ¶ 9; ECF No. 2, Ex. 1F.

The subpoena also

required SMW’s Custodian of Records to appear before Agent
Beerman on August 13, 2010, at the Board’s Subregion 37 office.
See ECF No. 2, Ex. 1F.
On August 13, 2010, SMW filed a Petition to Revoke
Investigative Subpoena Duces Tecum, see Burns Decl. ¶ 12, and did
not appear at the Subregion 37 office as required by the

3

subpoena.

See id. ¶ 13.

On September 30, 2010, Region 201

issued an Order Referring Petition to Revoke Investigative
Subpoena.

See Burns Decl. ¶ 14; ECF No. 2, Ex. 1J.

On the same

date, Board Agent Katrina Woodcock (“Agent Woodcock”) filed the
Region’s Opposition to Respondent’s Petition to Revoke.

See

Declaration of Katrina H. Woodcock (“Woodcock Decl.”) ¶ 2, ECF
No. 2, Ex. 2.

Agent Woodcock informed Attorney Khim that the

region was amending Item No. 8 of the subpoena by narrowing the
documents sought under that request number.
¶ 3; ECF No. 2, Ex. 2B.

See Woodcock Decl.

On December 16, 2010, the Board denied

SMW’s Petition to Revoke Investigative Subpoena Duces Tecum.
See Woodcock Decl. ¶ 6; ECF No. 2, Ex. 2E.

Between December 17,

2010, and January 16, 2011, Agent Woodcock made several
unsucessful attempts via telephone and mail to Attorney Khim to
get SMW to comply with the subpoena.
ECF No. 2, Ex. 2F.

See Woodcock Decl. ¶¶ 7-8;

On February 3, 2010, Attorney Khim informed

Agent Woodcock that SMW would not comply with the subpoena.
See Woodcock Decl. ¶ 9.
On February 25, 2011, the Board applied to this court
for an order requiring SMW to obey the subpoena issued to it
pursuant to section 11(2) of the National Labor Relations Act, 29

1

The Board’s Subregion 37 office in Honolulu, Hawaii, is a
a suboffice of Region 20, and functions under the direction of
Region 20’s Regional Director. See Application for Order
Requiring Obedience to Subpoena Duces Tecum at 2 n.1, ECF No. 1.
4

U.S.C. § 161(2), as amended.

See ECF No. 1.

On March 4, 2011,

Magistrate Judge Kurren issued an Order to Show Cause why an
order should not issue requiring SMW to comply with Subpoena
Duces Tecum No. B-560096.

See ECF No. 6.

On April 19, 2011,

after a hearing on the matter, Magistrate Judge Kurren orally
ordered SMW to obey the subpoena, and filed a written Order the
same day.

See ECF Nos. 13 & 15.

Objections to that Order.

On May 1, 2011, SMW filed its

See ECF No. 22.2

On May 6, 2011, the

Board filed its Opposition to the Objections.
III.

See ECF No. 25.

LEGAL STANDARD.
Before considering SMW’s Objections, the court must

determine the appropriate standard of review.

SMW urges the

court to perform a de novo review of Magistrate Judge Kurren’s
order, claiming that it was dispositive of their action.
Objections at 8, ECF No. 22.

See

Although there is no controlling

case authority from the Ninth Circuit, this court, in an
abundance of caution, conducts a de novo review.
Although routine discovery orders are nondispositive,
enforcement of agency subpoenas is frequently considered
dispositive because the matter would return to the agency after a
ruling on the discovery issue.

See NLRB v. Frazier, 966 F.2d

2

SMW is reminded that any future briefs and memoranda
exceeding fifteen pages must have a table of contents and a table
of authorities. See Local Rule 7.5(f). Both parties are also
reminded to submit two courtesy copies for any document
pertaining to a request for court action. See Local Rule 7.7.
5

812, 817 (3d Cir. 1992) (holding that the court reviews a
magistrate judge’s decision to quash an agency subpoena de novo
as all further issues would be addressed in an administrative
proceeding);3 Aluminum Co. of Am. v. EPA, 663 F.2d 499, 500 (4th
Cir. 1981) (holding that the district court should have reviewed
de novo a magistrate’s order regarding a motion to quash an
administrative search warrant obtained by the EPA); EEOC v.
Schwan’s Home Serv., 707 F. Supp. 2d 980, 987 (D. Minn. 2010)
(concluding that “an application to enforce an administrative
subpoena duces tecum, where there is no pending underlying action
before the Court, is generally a dispositive matter”); In re
Admin. Subpoena Blue Cross Blue Shield of Mass., Inc., 400 F.
Supp. 2d 386, 388 (D. Mass. 2005) (stating that enforcing or
quashing administrative subpoenas is considered “dispositive” for

3

In Frazier, a party to an administrative proceeding filed
a complaint with the district court seeking to compel compliance
with a subpoena pursuant to section 11 of the National Labor
Relations Act, 29 U.S.C. § 161. 966 F.2d at 815. The Third
Circuit held that, while enforcement of a subpoena is typically a
nondispositive matter within the context of a larger civil
action, in this case enforcement of the subpoena constituted the
entire substance of the parties’ case and was therefore
dispositive. Id. at 817-18. The court stated:
[I]n a proceeding to enforce a subpoena, the case
before the district court is over regardless of which
way the court rules. Once the court grants or quashes
the agency subpoena, it determines with finality the
duties of the parties. . . . The court’s decision seals
with finality the district court proceeding and is
subject to appellate review.
Id.
6

purposes of review when the matter involving the subpoena
constitutes the entire case before the Court.”); NLRB v. Cable
Car Advertisers, Inc., 319 F. Supp. 2d 991, 996 (N.D. Cal. 2004)
(concluding that the “subpoena enforcement proceeding” in the
district court is a dispositive matter because “[w]hen this
motion is decided, the case will effectively be over”).
This court treats the Magistrate Judge’s order as a
report of findings and recommendation (F&R) and reviews it de
novo.

If a party timely objects to portions of the findings and

recommendation, the district judge reviews those portions of the
findings and recommendation de novo.
Local Rule 74.2.

Fed. R. Civ. P. 72(b)(3);

The district judge may accept, reject, or

modify, in whole or in part, the findings and recommendation made
by the magistrate judge.

Fed. R. Civ. P. 72(b).

The district

judge may consider the record developed before the magistrate
judge.

Local Rule 74.2.

The de novo standard requires the

district court to consider a matter anew and arrive at its own
independent conclusions, but a de novo hearing is not ordinarily
required.

United States v. Remsing, 874 F.2d 614, 617 (9th Cir.

1989); United States v. Boulware, 350 F. Supp. 2d 837, 841 (D.
Haw. 2004); Local Rule 74.2.
The district judge may accept the portions of the
findings and recommendation to which the parties have not
objected as long as it is satisfied that there is no clear error

7

on the face of the record.

See United States v. Bright, Civ. No.

07-00311 ACK/KSC, 2009 WL 5064355, at *3 (D. Haw. Dec. 23, 2009);
Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003);
Fed. R. Civ. P. 72(b) advisory committee’s note.
On this appeal, whether the court employs the de novo
review or reviews the Magistrate Judge’s Order for clear error,
the Order passes muster.
IV.

ANALYSIS.
In its Objections, SMW largely repeats the arguments

from its original Opposition to the Board’s application for an
order requiring obedience to the subpoena.
remain unpersuasive.

SMW’s arguments

Based on his review and consideration of

the briefings and oral arguments of the parties, Magistrate Judge
Kurren ruled that there was “good and sufficient cause” to
require SMW to obey the subpoena duces tecum.
ECF No. 15.

See Order at 2,

After conducting a de novo review, this court agrees

with the Magistrate Judge.
A.

Standard for Analyzing Agency Subpoena
Enforcement.

An agency subpoena that is challenged should be
reviewed to determine “(1) whether Congress has granted the
authority to investigate; (2) whether procedural requirements
have been followed; and (3) whether the evidence is relevant and
material to the investigation.”

EEOC v. Fed. Exp. Corp., 558

F.3d 842, 848 (9th Cir. 2009); NLRB v. N. Bay Plumbing, Inc., 102
8

F.3d 1005, 1007 (9th Cir. 1996) (citations omitted).

If all

three factors are established in the affirmative, “the subpoena
should be enforced unless the party being investigated proves the
inquiry is unreasonable because it is overbroad or unduly
burdensome.”

N. Bay Plumbing, 102 F.3d at 1007.
1)

Congress Granted the Board Authority to
Investigate Unfair Labor Practice Charges.

Congress granted the Board broad authority and
obligation to investigate unfair labor practice charges that are
submitted before it.

See 29 U.S.C. § 160(a) (granting the Board

the authority “to prevent any person from engaging in any unfair
labor practice” listed in section 8 of the Act).

Section 11(1)

of the National Labor Relations Act, 29 U.S.C. § 161(1),
provides, in pertinent part:
The Board, or its duly authorized agents or agencies,
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. The 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. . . . Such
attendance of witnesses and the production of such
evidence may be required from any place in the United
States or any Territory or possession thereof, at any
designated place of hearing.
29 U.S.C. § 161(1).
Andreozzi’s charge in Board Case 37-CB-2030 alleges
that SMW committed an unfair labor practice listed in section 8
9

of the Act.

See ECF No. 2, Ex. 1A.

Subregion 37 is currently

investigating that allegation on behalf of the Board, pursuant to
the investigative authority granted to it by Congress.

Among the

authorities Congress has granted the Board is the issuing of
“subpoenas requiring both the production of evidence and
testimony during the investigatory stages of an unfair labor
practice proceeding.”

See NLRB v. N. Bay Plumbing, Inc., 102

F.3d 1005, 1008 (9th Cir. 1996) (quoting NLRB v. Carolina Food
Processors, Inc., 81 F.3d 507, 514 (4th Cir. 1996)).
2)

Board’s Procedural Requirements Followed.

The Board’s procedural requirements for issuing
subpoenas have been followed.

The subpoena was issued by the

Board on behalf of an agent of the Board (Agent Beerman), and
served on SMW in the manner provided by law.
Agent Beerman sought approval for the subpoena and the
Board granted his request.

Applications filed before an

underlying hearing are filed with the Regional Director, who is
authorized to grant the application on behalf of the Board.
C.F.R. § 102.31(a).

29

At the hearing, Magistrate Judge Kurren

highlighted the Board’s numerous attempts to obtain the requested
information without court intervention.

SMW had been given

opportunities prior to the issuance of the subpoena to
voluntarily cooperate with Subregion 37’s investigation, but
failed to provide all applicable information.

10

Following SMW’s

refusal to voluntarily cooperate and upon Agent Beerman’s
application, the Board issued the subpoena.
Furthermore, the Board duly served the subpoena upon
SMW by delivering it by certified mail to SMW’s principal place
of business.

The Board received a return receipt for delivery of

the subpoena as proof that it was duly served.

A Board subpoena

may be served by registered or certified mail, or by leaving a
copy thereof at the principal office or place of business of the
person required to be served.

29 U.S.C. § 161(4).

post office receipt serves as proof of service.

The return

Id.

Given the charge that was filed and the request for
approval by the Regional Director that was authorized and
accepted, Magistrate Judge Kurren found no defect in how the
subpoena was served.

This court agrees with Magistrate Judge

Kurren that the Board’s procedural requirements were followed.
3)

Subpoena Evidence is Relevant and Material to
the Investigation.

The Board’s subpoena request for information was
relevant and material to the investigation.

The Board has to

show “only some reasonable basis for believing that the
information will prove relevant.”

NLRB v. Int’l Medication Sys.,

Inc., 640 F.2d 1110, 1114 n.3 (9th Cir. 1981); see also Endicott
Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) (holding that
it was duty of the district court to order the subpoena since
“the evidence sought by the subpoena was not plainly incompetent
11

or irrelevant”).
Andreozzi alleges that SMW violated section 8(b)(1)(A)
of the Act by refusing to dispatch him for work while dispatching
others who were lower on the dispatch list.
1A.

See ECF No. 2, Ex.

Pursuant to section 8(b)(1)(A), a union serving as an

employee’s exclusive collective bargaining agent must represent
the employee’s interests fairly and in good faith.
158(b)(1)(A).

29 U.S.C. §

The Board issued the subpoena seeking documents

that pertain to the actual referral practices of SMW and the
referrals of people other than Andreozzi.

The subpoena request

includes documents relating to the rules and procedures SMW
followed in operating its hiring hall and to the files
documenting SMW’s actual job referrals within the six months
before the filing of the charge in Case 37-CB-2030.

See ECF No.

2, Ex. 1F (copy of Subpoena Duces Tecum No. B-560096).

The

evidence requested by the subpoena was relevant and material.
B.

Defendants Fail to Demonstrate That the Inquiry is
Unreasonable.

The existence of the three factors constitutes a prima
facie showing that the requirements for enforcement of an agency
subpoena have been established.
1138, 1143 (9th Cir. 1997).

See FDIC v. Garner, 126 F.3d

Once a prima facie showing has been

made, it is left to the respondent to show compelling reasons
that the subpoenas should not be enforced or should be enforced
only in modified form.

See McLaughlin v. Service Employees
12

Union, ALF-CIO, Local 280, 880 F.2d 170, 174 (9th Cir. 1989).
SMW fails to carry its burden of demonstrating that the
subpoena is unreasonably overbroad or unduly burdensome.
C.

SMW Does Not Establish That Its Objections Are
Valid.

SMW makes six broad Objections to the Magistrate
Judge’s findings.

None of the Objections meets SMW’s burden.

First, SMW’s only new argument is that Magistrate Judge
Kurren failed to find that the Board was biased in favor of
Andreozzi and against SMW.

SMW relies on Attorney Khim’s

Declaration stating that Khim heard Thomas Cestare say that the
Board was on Andreozzi’s side.
Khim ¶ 15, ECF No. 8-12.

See Declaration of Charles K.Y.

SMW argues that the Board’s failure to

address Attorney Khim’s Declaration “clearly indicates” that the
Board was on Andreozzi’s side.

See Objections at 13.

This

matter, offered for the truth of the matter asserted, is hearsay,
propounded by an attorney advocate.

Moreover, at the hearing,

the Board denied that Cestare made the alleged statements.
See Transcript at 18:18-22, ECF No. 24.

The Board has also

offered to provide Cestare’s testimony to support its denial, see
id. at 18:20-21, and a pertinent declaration from Cestare.
See Opp’n to Objections at 4 n.4, ECF No. 25.

Given the state of

the record, this court, even analyzing the matter de novo, sees
no reason to adopt SMW’s position as to this disputed issue.
SMW also argues that Agent Beekman was biased, and that
13

the decision to issue an administrative subpoena was the “product
of the unreviewed discretion of the enforcement officer in the
field.”

See Objections at 16.

SMW notes that the subpoena was

requested by and returnable to Agent Beerman, allegedly clearly
indicating that the subpoena was made by a lone, biased inspector
in the field.

See Objections at 15.

The evidence does not show

any bias in the issuing of the subpoena.

Rather, the record

demonstrates that the subpoena was properly issued to aid Agent
Beerman in the investigation of an unfair labor practices charge.
In fact, SMW’s Petition to Revoke the subpoena was reviewed and
rejected by the Board in Washington, D.C.
¶ 6; ECF No. 2, Ex. 2E.
Beekman alone.

See Woodcock Decl.

The subpoena was not issued by Agent

He properly sought and received approval from the

Board.
Second, SMW argues that the subpoena violates the
Fourth Amendment.

See Objections at 14-17.

SMW cites to two

authorities in support of its argument, but neither is applicable
to this case.

See v. City of Seattle, 387 U.S. 541 (1967), held

that a search warrant was a necessary prerequisite to an
administrative search of business premises.

United States v.

Starnack Sales Co., 387 F.2d 849 (3d Cir. 1968), holding that
consent is ordinarily required for a warrantless search of
commercial premises by an inspector of the Food and Drug
Administration, overturned a conviction based on evidence

14

obtained by an inspector acting without a formal subpoena.

Both

See and Starnack involved the arrest and conviction of persons
who refused warrantless inspections by governmental agents who
lacked delimiting subpoenas.

In this case, the Board approved a

delimiting subpoena under its authority to investigate alleged
unfair labor practices.

The requested documents will demonstrate

whether Andreozzi’s name was unlawfully bypassed and whether
other workers were referred in a manner inconsistent with SMW’s
written rule that dispatches be made in the order of names on a
list.

See and Starnack were concerned about the impact of

unchecked governmental inspections on the right to be free from
unreasonable searches.

That concern is absent here.

Third, SMW objects to the disclosure of documents
purportedly already in the Board’s possession.
17-18.

See Objections at

SMW cites United States v. Powell, 379 U.S. 48 (1964), in

support of the proposition that disclosure of subpoena request
item Nos. 2, 3, and 4 should not be compelled because the Board
already has those items.

See Objections at 17-18.

Item No. 2 of

the subpoena calls for the disclosure of SMW’s Labor Management
Agreement.

See ECF No. 2, Ex. 1F.

Item Nos. 3 and 4 ask for

material relating to SMW’s hiring rules and operations.

See id.

Powell concerned a summons and examination of IRS tax records.
The applicable statute granted the IRS the power to make
examinations, but included the caveat that no taxpayer would be

15

subjected to “unnecessary examination or investigations,” and
that “only one inspection of a taxpayer’s books of account shall
be made for each taxable year” in the absence of an applicable
exception.

Id. at 52-53.

In this context, the Court wrote, “If

. . . information in the taxpayer’s records is needed which is
not already in the Commissioner’s possession, we think the
examination is not ‘unnecessary’ within the meaning of [the
statute].”

Id. at 53.
The problem with SMW’s argument is that the Board

cannot tell whether it has all the documents responsive to Item
Nos. 2, 3, and 4.

The Board argues that the request for these

items is designed to determine whether additional documents
setting forth SMW’s dispatch rules exist.
Objections at 7, ECF No. 25.

See Opp’n to

The Board is in possession of the

“Labor & Management Agreement” and “Referral Procedure” booklets,
covered by the subpoena.

See id.

If these are the only policies

in existence responsive to Item Nos. 2, 3, and 4, then SMW’s
Custodian of Records need only state as much when he or she
appears in response to the subpoena.

Because SMW has failed to

comply with the subpoena, the Board does not know whether it has
all the rules and policies covered by Item Nos. 2, 3, and 4.
Fourth, SMW argues that the subpoena cannot be enforced
because it violates the Board’s procedural requirements.

This

court and Magistrate Judge Kurren have both found otherwise.

16

Agent Beerman sought approval of the subpoena, and the Board,
through its proper delegation to the Regional Director,
authorized the subpoena in this case.

SMW’s argument that the

Board’s general counsel’s office, and not the Board’s office,
must prove compliance with procedural requirements is unavailing.
Once the subpoena was authorized, the subsequent amendment of
Item No. 8 was allowed to be made locally.

Magistrate Judge

Kurren found that there was no need to return to the Regional
Director to amend the subpoena to narrow it.
24:6-11.

See Transcript at

This court agrees.
Fifth, SMW complains that the subpoena violates the

First Amendment.

See Objections at 26-27.

To prevail on this

claim, SMW must demonstrate that “enforcement of the subpoenas
will result in (1) harassment, membership withdrawal, or
discouragement of new members, or (2) other consequences which
objectively suggest an impact on, or ‘chilling’ of, the members’
associational rights.”

Brock v. Local 375, 860 F.2d 346, 349-50

(9th Cir. 1988) (internal quotations and citations omitted).

SMW

argues that it will be harassed by the enforcement of the
subpoena because “it will have to incur the expense of compiling
and disclosing materials,” and “will have to disclose its
members’ personal and sometimes embarrassing medical
information.”

See Objections at 26.

The Board has narrowed its

original subpoena request and no longer seeks the results of drug

17

tests.

Instead, the Board seeks documents going to the costs

incurred by SMW in facilitating the tests and the identity of
those tested.

See ECF No. 2, Ex. 2B.

The hiring hall rules in

SMW’s possession require all prospective employees to take a
substance abuse test before being dispatched to an employer.
See Opp’n to Objections at 9 n.6.
pays for the tests.

See id.

There is evidence that SMW

The documents requested by the

revised subpoena are an alternative method of tracking SMW’s
dispatches and will help the Board determine whether and to what
extent individuals were dispatched ahead of Andreozzi.

See id.

There is no support in the record for SMW’s claims of harassment
or chilling of SMW’s members’ associational rights.
Sixth, SMW argues that the subpoena violates its due
process rights because it is tantamount to a judgment that “SMW
. . . committed unfair labor practices without first being
afforded a trial.”

See Objections at 27.

SMW also argues that

disclosure of Item Nos. 5, 6, and 7 was wrongfully compelled
because the Regional Director’s office lacked sufficient evidence
to suggest a prima facie case for the charge that SMW had
breached the hiring hall rules by referring others who were below
Andreozzi. See id. at 24.

Those items seek materials relating to

the hiring hall operation and referral process.

SMW’s position

ignores the Board’s power to “investigate merely on suspicion
that the law is being violated, or even just because it wants

18

assurance that it is not.”

United States v. Morton Salt Co., 338

U.S. 632, 642-43 (1950); see also Solis v. Laborer’s Int’l Union
of N. Am., Civ. No. 09-00512 ACK-BMK, 2010 WL 1783578, at *9 (D.
Haw. Apr. 29, 2010).

Again, “[t]he Board may issue subpoenas

requiring both the production of evidence and testimony during
the investigatory stages of an unfair labor practice proceeding.”
NLRB v. N. Bay Plumbing, Inc., 102 F.3d 1005, 1008 (9th Cir.
1996).

Enforcement of the subpoena does not assign guilt.

Instead, it allows the Board to investigate the possibility that
SMW violated the law as alleged.
V.

CONCLUSION.
For the foregoing reasons, the court affirms the

Magistrate Judge’s Order Requiring Obedience to Subpoena Duces
Tecum.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii May 10, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

National Labor Relations Board v. Sheet Metal Workers Int’l Asso., Local 293,
Civ. No. 11-00290 SOM/BMK; ORDER AFFIRMING MAGISTRATE JUDGE’S ORDER REQUIRING
OBEDIENCE TO SUBPOENA DUCES TECUM.

19