Lindsay v. Fuyao Glass America Inc

Filing 6

REPORT AND RECOMMENDATIONS re 1 the Board's Application For Order Requiring Obedience To Subpoena Duces Tecum be GRANTED, in part, and narrowed as described herein. Objections to R&R due by 4/20/2017. Signed by Magistrate Judge Sharon L. Ovington on 4/6/17. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

GAREY E. LINDSAY, Regional
Director of the Ninth Region of the
National Labor Relations Board,
Applicant,
vs.
FUYAO GLASS AMERICA INC.,
Respondent.

: Case No. 3:16-mc-00007
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
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REPORT AND RECOMMENDATIONS1
“The NLRB is authorized to subpoena documents of any party ‘being investigated or
proceeded against that relates to any matter under investigation or in question.’” N.L.R.B. v.
Detroit Newspapers, 185 F.3d 602, 605 (6th Cir. 1999) (quoting, in part, Labor–
Management Relations Act, § 11(1), 29 U.S.C. § 161(1)) (other citation omitted; N.L.R.B. v.
ITT Telecomms., 415 F.2d 768, 769 (6th Cir. 1969). “If a party refuses to comply with a
subpoena, the ‘district court ... shall have jurisdiction to issue to such person an order
requiring such person to appear before the Board ... to produce evidence if so ordered.’” Id.
(quoting, in part, § 11(2), 29 U.S.C. § 161(2)). This is the foundation of the present matter.
Its architecture arises from the parties’ dispute over the National Labor Relation Board’s
subpoena for certain documents from Respondent Fuyao Glass America Inc.
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Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

The National Labor Relations Board issued an administrative subpoena duces tecum
to Respondent during the Board’s investigation of alleged unfair labor practices. The
investigation is connected to a charge of unfair labor practices presently pending before the
Board (Region 9). The charge alleges that Respondent terminated Adam Moffitt’s
employment because he openly engaged in Union activity. If shown, this would constitute a
violation of Section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §
158(a)(1) and (3).
The specifics of the NLRB’s interest in Respondent begins with its employment of
Adam Moffitt in its ARG (Aftermarket Replacement Glass) Department. Respondent
terminated his employment on or about May 2, 2016. The reason for Moffitt’s termination,
according to Respondent, was that he had exceeded ten attendance occurrences under its
attendance policy. (Doc. #4, PageID # 43). The Board is curious about whether this was
Respondent’s actual reason. As a result, the Board issued its presently at-issue subpoena
duces tecum, requesting two sets of documents.
Respondent does not challenge the Board’s first request but does challenge the
second. The challenged request asks Respondent to produce documents containing, or
consisting of, the following:
2. Names, contact information, attendance records, and all discipline
and discharge records for attendance violations, for all employees
working in the ARG Department since September 1, 2015.
(Doc. #1, PageID #9). Respondent contends that this request is overly broad, unduly
burdensome, seeks information that is not relevant, and amounts to a fishing expedition and
an abuse of process.
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The decision to enforce an NLRB subpoena is within the discretion of the district
court. Detroit Newspapers, 185 F.3d at 605. Congress has given the Board expansive
authority to subpoena documents from “any person2 being investigated or proceeded against
that relates to any matter under investigation or in question.” 29 U.S.C. § 161(1) (footnote
added). This authority, however, is not unlimited. This “court may not enforce an
administrative subpoena unless the request seeks relevant material and is not unduly
burdensome.” EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir.1994) (citing Univ.
of Pennsylvania v. EEOC, 493 U.S. 182, 191 (1990)); see Detroit Newspapers, 185 F.3d at
605 (the subpoena must seek “relevant material”). This “court’s task is to weigh the likely
relevance of the requested material to the investigation against the burden ... of producing
the material.” Detroit Newspapers, 185 F.3d at 605 (citing Ford Motor Credit Co., 26 F.3d
at 47).
In the present case, the Board’s second request seeks to explore, and will likely
uncover, documents with information relevant to determining whether or not Respondent
terminated Millet’s employment because he openly supported Union activities. Borrowing
from employment-discrimination cases, see, e.g, Jones v. Potter, 488 F.3d 397, 405 (6th Cir.
2007), the Board’s theory essentially proposes that there is one large set containing Millett
and employees comparable or similarly situated to him who violated the ten-point
attendance policy. The Board seeks to learn whether Respondent essentially created two
2

“The term ‘person’ includes one or more individuals, labor organizations, partnerships, associations,
corporations, legal representatives, trustees, trustees in cases under title 11 of the United States Code, or
receivers.” 29 U.S.C. § 152(1).

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subsets of these ten-point violators: one subset containing Millett, a Union supporter who
was terminated; the other containing one or more individuals who did not support the Union
and were not terminated. If documents contain information showing the latter, then a
reasonable inference may arise that Respondent’s true reason for terminating Millet was his
open support of Union activities, not his violation of the ten-point attendance policy. The
absence of such documents would tend to show the opposite. Because of this, the Board’s
second document request seeks likely relevant information.
Yet, this does not fully resolve the parties’ dispute. During a hearing before this
Court, Respondent presented testimony from its Vice President of Human Resources, Eric
James Vanetti. He testified that answering the Board’s second request would require
Respondent to produce records for over 800 employees. He explained that to locate such
responsive documents, three sources would need to be examined: (1) the Human
Resources’ system to determine, for example, if an employee was employed in ARG
department during the pertinent time period; (2) the employee’s personnel files, which are
kept alphabetically in paper form; and (3) supervisors’ information about the employee’s
attendance. It would take 30 minutes (and probably more) to examine a single employee’s
personnel file and the examination would likely lead to further investigative work and
require judgment calls, like how many points a particular employee should have been given
for an attendance issue. Given all this work, the time it would take, along with the number
of employees involved, Respondent would need to hire external labor to comply with the
Board’s second request for documents.

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Weighing the likely relevance of the documents and information the Board seeks
“against the burden ... of producing the material,” Detroit Newspapers, 185 F.3d at 605,
reveals a need to narrow the Board’s request, at least at the present time. Vinetti testified in
a knowledgeable and convincing manner about Respondent’s fast-growing business and the
resulting strain it placed on Respondent’s minimally staffed Human Resources Department
before Vinetti arrived. Respondent’s fast growth also created a corresponding need to hire
many new employees, including Human Resources employees, and caused inefficient or
disorganized record-keeping. More significantly, Vinetti testified credibly about the
hundreds of work hours that would be needed to fully comply with Board’s second request
for documents—including the need to search three sources for such documents—and the
resulting need for Respondent to hire outside labor to search for responsive documents, if
the Board’s subpoena is enforced. Vinetti’s testimony establishes that the Board’s request
will place an undue burden upon Respondent. However, the Board’s request can be
narrowed so it does not impose an undue burden. The narrowing point is to documents of
employees working under Millett’s former supervisor in the ARG Department, Mr. D.
Osgood, during the time period identified in the Board’s second request. This will likely
identify employees similarly situated to Millett. Although this will still place some burden
on Respondent, this narrows the Board’s second document request such that it will not place
an undue burden on Respondent when weighed against the likely relevance of the
information sought.
Respondent argues that neither the Board nor the Union has provided it with the
name of even a single employee who violated the ten-point attendance policy, like Millett,
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but was not terminated. But this reverses things. Given the Board’s broad authority to
subpoena relevant documents, it does not need to limit its document request to a single
employee with Millett’s same attendance violation. See N.L.R.B. v. Greif Bros., Inc., 2011
WL 2637078, at *1 (S.D. Ohio 2011) (King, MJ) (Board has broad subpoena authority),
Report & Recommendation adopted by N.L.R.B. v. Greif Bros., Inc., 2011 WL 2636960
(S.D. Ohio July 6, 2011) (Marbley, DJ), While the Board could possibly learn the names of
some employees by, say, urging the Union to search for them, the Board has no reasonably
reliable and comprehensive method to learn about such employees, except through a search
of Respondent’s records.
Respondent also contends that the Board is on a fishing expedition and is abusing its
power due to its overly broad second request for documents. These contentions lack merit
in light of the Board’s expansive subpoena authority in this area. See id.; see also 29 U.S.C.
§ 161(1). Additionally, the Board’s search for employees similarly situated to Millett is
focused; it is not an unfocused attempt to fish for any and all possible violations of the
National Labor Relations Act. It suffices, therefore, to narrow the Board’s request without
the need to fault the Board for fishing or abusing its authority.
Accordingly, the Board’s Application is well taken, in part, but its second request for
documents should be narrowed to documents concerning employees in the ARG
Department working under Plaintiff’s former supervisor, Mr. D. Osgood, since September 1,
2015.

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IT IS THEREFORE RECOMMENDED THAT:
The Board’s Application For Order Requiring Obedience To Subpoena Duces Tecum
be GRANTED, in part, and narrowed as described herein.

April 6, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen (14) days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendations are based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party=s objections within fourteen (14) days after
being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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