The National Labor Relations Board has denied petitions to revoke subpoenas that were issued by an NLRB Regional Director to two companies seeking information about a possible joint employer relationship between the two employers. The subpoenas arose out of the investigation of several unfair labor practice charges filed by a union against the companies, alleging they were joint employers (as well as alter egos and a single employer).

In the unpublished Order, Members Mark Gaston Pearce and Lauren McFerran enforced the subpoenas despite the union’s failure to articulate any facts about the joint employer allegations. RPT Communications LLC, SK Cabling Systems LLC, TekSystems Management, Inc. and Richardson Telecommunications Service, Inc. as Alter Egos/Single Employers and as a Joint Employer and Communications Workers of America, No. 29-CA-182088 (Mar. 16, 2017).

The charges, alleging violations of several sections of the National Labor Relations Act, referred to the employers as alter egos, a single employer, and joint employers, but did not contain any additional information. The NLRB rejected the petitioners’ claim that the subpoenas did not seek information relevant to the matters under investigation. The Board held the subpoenas “lie well within the scope of the Board’s broad investigative authority, which extends not only to the substantive allegations of a charge, but to ‘any matter under investigation or in question’ in the proceeding. . . nothing in Sec. 11 of the Act or Sec. 102.31(b) of the Board’s Rules can be read to impose a requirement that the Regional Director articulate ‘an objective factual basis’ in order to compel the production of information that is necessary to investigate a pending unfair labor practice charge.”

Acting Chairman Phillip A. Miscimarra dissented, writing that a subpoena seeking documents pertaining to an alleged joint-employer or single-employer status of a charged party “requires more . . . than merely stating the name of a possible single or joint employer on the face of the charge.” In particular, the General Counsel must be able to articulate “an objective factual basis supporting such an inquiry.” He found the General Counsel had failed to do so with respect to the possible joint employer and single employer relationship between the petitioners.

Lessons

• In 2015, the NLRB in Browning-Ferris Industries of California, 362 NLRB No. 186, set a new union-friendly standard for determining joint employer status under the NLRA. Beyond simply broadening the standard for finding two or more employers to be joint employers, Browning-Ferris has emboldened unions to liberally allege that employers are joint employers, and as a result, to require alleged joint employers to comply with burdensome subpoenas seeking information to support that often speculative allegation.

• There is a substantial possibility that a five-member NLRB, which includes two likely business-friendly members to be appointed by President Donald Trump, will overturn Browning-Ferris. Miscimarra’s dissent also is a window into how a fully-constituted NLRB may rule on similar petitions to revoke in the future. The future Board may refuse to enforce subpoenas where the General Counsel has not articulated an objective factual basis supporting the subpoena’s inquiry.

President Trump has not indicated when he will nominate new Board members, although the names of several possible nominees have become public.