IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

vs. Civil Action 2:11-CV-112

Judge Marbley

Magistrate Judge King

GREIF BROTHERS, INC.,

Respondent.

REPORT AND RECOMMENDATION

This matter is before the Court on the application of the

National Labor Relations Board (“the Board”)for an order requiring

obedience to a subpoena duces tecum, Doc. No. 1 (“Application”). For

the reasons set out below, it is RECOMMENDED that the Application be

GRANTED. 

I. BACKGROUND

This dispute arises out of the Board’s attempt to investigate an

unfair labor charge filed by the United Steelworkers of America, Local

14514-84 (“United Steelworkers”). On November 2, 2010, the United

Steelworkers filed a charge against Greif Brothers, Inc. (“Greif

Brothers” or “respondent”), alleging that Greif Brothers retaliated

against a union representative, Daniel Walsh, by discharging his son,

Justin Walsh (generally, “the Charge”).1 Exhibit A and Exhibit B,

attached to Memorandum in Support of Application for Order Enforcing

1At the hearing, counsel indicated that Justin Walsh was hired in May

2007 and discharged in or around October 2010.

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Subpoena Duces Tecum, Doc. No. 1 (“Memo.”).2 The Board represents

that, in November 2010, after initiating an investigation of the

Charge, it asked respondent for certain information related to the

Charge. Memo., p. 2. Unable to obtain the documents through less

formal methods, the Board issued a subpoena duces tecum to respondent

on December 14, 2010 (“the subpoena”). Exhibit C, attached to Memo. 

Specifically, the subpoena identified five categories of documents to

be produced by December 28, 2010:

1. All internal memoranda and records the Employer [Greif

Brothers] relied upon in discharging Justin Walsh.

2. All attendance records of all employees currently

employed by Employer.

3. The personnel files of all employees who have been

terminated since January 1, 2010 to the present,

including his/her attendance records.

4. All notes, emails and internal documents issued

between/among managers relating to grievances and NLRB

charges filed by Mr. Danny Walsh.

5. The collective-bargaining agreement and all attendance

policies and FMLA policies in effect from August 1,

2009 to the present.

Id. at 1, 3-4. 

The Board represents that, on January 13, 2011, respondent

produced some of the subpoenaed documents. Memo., p. 2. Unable to

obtain the remainder of the requested documents, however, the Board

filed its Application on February 3, 2011.3

On May 23, 2011, the undersigned conducted a hearing on this

2United Steelworkers filed an amended charge on November 23, 2010, which

appears to contain the same, although more detailed, allegations. Exhibit B.

3The matter was referred to the undersigned for a hearing and report and

recommendation. Order, Doc. No. 2. 

2

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matter (“the hearing”). Doc. No. 13. All parties were represented by

counsel. 

II. STANDARD

The Board has broad authority to subpoena documents of “any

person4 being investigated or proceeded against that relates to any

matter under investigation or in question.” 29 U.S.C. § 161(1); NLRB

v. N. Bay Plumbing, 102 F.3d 1005, 1007 (9th Cir. 1996) (noting that

the Board has “broad investigatory powers” under 29 U.S.C. § 161). 

See also NLRB v. Detroit Newspapers, 185 F.3d 602, 605 (6th Cir. 1999)

(stating that the subpoena must seek “relevant material”) (quoting

EEOC5 v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994)). 

Relevance of the material sought is broadly interpreted. NLRB v. Am.

Med. Response, Inc., 438 F.3d 188, 193 (2nd Cir. 2006). Therefore,

subpoenas issued by the Board may properly seek “‘evidence [that]

relates to or touches the matter under investigation.’” NLRB v. Dutch

Boy, Inc., 606 F.2d 929, 932 (10th Cir. 1979) (quoting Cudahy Packing

Co. v. NLRB, 117 F.2d 692, 694 (10th Cir. 1941)). 

If a person refuses to comply with a subpoena issued by the

Board, 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.” 29 U.S.C. § 161(2). 

Determining whether or not to issue such an order falls within the

4“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).

5The EEOC has the same investigative powers as the NLRB in 29 U.S.C. §

161. See 42 U.S.C. § 2000e-9.

3

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district court’s discretion, Detroit Newspapers, 185 F.3d at 605, but

the court “may undertake only an extremely limited inquiry.” NLRB v.

Frederick Cowan and Company, Inc., 522 F.2d 26, 28 (2nd Cir. 1975). 

When seeking enforcement, the Board need only show that the

“investigation will be conducted pursuant to a legitimate purpose,

that the inquiry may be relevant to the purpose, that the information

sought is not already within the Commissioner’s possession, and that

the administrative steps required by the Code have been followed.” 

United States v. Powell, 379 U.S. 48, 57-58 (1964). Nevertheless, if

the respondent establishes that the subpoena imposes undue burden, the

subpoena should not be enforced. Detroit Newspapers, 185 F.3d at 605

(quoting Ford Motor Credit Co., 26 F.3d at 47); Am. Med. Response,

Inc., 438 F.3d at 192-93; NLRB v. Bakersfield Californian, 128 F.3d

1339, 1341 (9th Cir. 1996); NLRB v. Carolina Food Processors, 81 F.3d

507, 513 (4th Cir. 1996). Accordingly, in determining whether or not

to order compliance, “‘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 (quoting Ford Motor Credit Co., 26 F.3d at 47). 

III. DISCUSSION

As set forth in more detail below, the parties have narrowed the

scope of the categories of documents currently in dispute. 

A. Documents Relied Upon in Discharging Justin Walsh (Category

No. 1)

Responsive documents have been produced and the parties agree

that no dispute remains as to this request.

B. Current Employees’ Attendance Records (Category No. 2)

4

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Respondent has previously produced disciplinary records of all

employees disciplined6 within a two-year period. However, the Board

complains that two types of documents responsive to Category No. 2

have not been produced. First, the Board still seeks production of

attendance or “punch” records tracked by respondent’s KRONOS computer

system. Second, respondent requests production of respondent’s

employee attendance logs upon which respondent bases its disciplinary

records.7 The Board argues that both these types of records are

relevant to its investigation because they will permit the Board to

compare the attendance and disciplinary records of all other employees

with that of Justin Walsh.

Respondent has agreed to produce the attendance logs, but objects

to production of the KRONOS data. Specifically, respondent argues

that such data is not relevant to the Board’s investigation because it

does not record all attendance information; according to respondent,

KRONOS data is simply a record of when employees punch in and out of

work and does not, for example, reflect days missed by an employee. 

Respondent represents that it is the paper log upon which a local

plant relies when meting out discipline, not the KRONOS records. In

addition, respondent’s counsel advised that he does not know where the

KRONOS data is stored, but suggests that locating and gathering this

information could be burdensome, time-consuming and expensive. 

6According to counsel, respondent maintains a disciplinary system in

which an employee receives “points” (or possibly half points or quarter

points) for certain types of behavior, including attendance problems. 

7The Board seeks these records as they relate only to respondent’s

Huntington, West Virginia, facility. Counsel agree that this facility employs

26-30 individuals.

5

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Respondent’s arguments are not well-taken. The Court agrees with

the Board that the KRONOS information “relates to” the Board’s

investigation of Justin Walsh’s discharge. See 29 U.S.C. § 161(1). 

Although respondent suggests that gathering this information might be

burdensome, its counsel concedes that he simply does not know how the

KRONOS data is maintained or whether it may be retrieved without undue

burden. Under these circumstances, and considering that the Board is

seeking information relating to no more than 30 employees at only one

facility, the Court concludes that respondent has not established that

compliance with the subpoena in this respect will be unduly

burdensome. Respondent must therefore produce the requested documents.

See Detroit Newspapers, 185 F.3d at 605.

C. Personnel Files of Employees Terminated Since January 1,

2010 (Category No. 3)

Respondent has produced disciplinary and personnel records for

three individuals. Respondent’s counsel represents that he will

confirm that this production is complete, i.e., confirm that the

production redacts only information relating to particularly sensitive

information for each employee, such as bank, IRS and medical records.

With that representation, the Board is satisfied with respondent’s

production. 

D. Documents Issued Between Managers Relating to Grievances and

Charges Filed by Daniel Walsh (Category No. 4)

The Board seeks “[a]ll notes, emails and internal documents

issued between/among managers relating to grievances and NLRB charges

filed by Danny Walsh.” Exhibit B, attached to Memo. Although

respondent produced a packet of materials shortly before the hearing,

respondent’s counsel did not personally compare the documents produced

6

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to the original documents provided by his client. The Board, which

did not have the opportunity to review the packet, is uncertain

whether respondent has produced all responsive documents, particularly

those generated after Justin Walsh’s discharge in October 2010. At

the hearing, the Board’s counsel offered to narrow the scope of this

subpoena request to a specific time period, beginning on October 1,

2008 and continuing through the present. The Board contends that this

information is relevant to its investigation because it may reflect an

unlawful animus against Daniel Walsh and support the allegation that

Justin Walsh’s discharge was retaliatory. The Board further argues

that even information in this category that post-dates Justin Walsh’s

discharge is properly discoverable.

Respondent is willing to produce responsive documents for the

period between October 1, 2008 and October 20, 2010. However,

respondent’s counsel contends that documents created after Justin

Walsh’s termination are irrelevant. Although the Board has wide

latitude in conducting investigations, respondent argues, documents

post-dating Justin Walsh’s discharge, i.e., documents “to the

present,” are simply beyond the scope of the Board’s investigation.

This Court disagrees. The Board has broad investigatory

authority to subpoena any evidence that “relates to any matter under

investigation or in question.” 29 U.S.C. § 161(1). Even documents

that post-date Justin Walsh’s discharge, if indeed any exist, may

nevertheless shed light on the motivation underlying his termination.

See NLRB v. Dutch Boy, Inc., 606 F.2d 929, 932 (10th Cir. 1979). 

Therefore, the Court concludes that the Board is entitled to the

production of responsive documents from the period of October 1, 2008

7

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through the present.8 

E. Collective Bargaining Agreement, Attendance Policies and

FMLA Policies Effective From August 1, 2009 to the Present

(Category No. 5)

Documents responsive to Category No. 5 have been produced and the

parties agree that no dispute remains as to this request. 

WHEREUPON, it is RECOMMENDED that the Application for Order

Requiring Obedience to Subpoena Duces Tecum, Doc. No. 1, be GRANTED

and that the subpoena be enforced consistent with the foregoing. It

is SPECIFICALLY RECOMMENDED that respondent be required to make its

production within 21 days of the date of this Report and

Recommendation.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

filed within fourteen (14) days after being served with a copy

thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

8In so concluding, the Court notes that the scope of documents extending

“to the present” would have been much more limited had respondent produced

documents in a more timely fashion, i.e., sooner than nearly six months after

issuance of the subpoena in December 2010.

8

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See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

May 26, 2011 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

9

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