C.F.R. » Title 29 » CHAPTER I—NATIONAL LABOR RELATIONS BOARD › PART 102—RULES AND REGULATIONS, SERIES 8 › Subpart C—Procedure Under Section 10(A) to (I) of the Act for the Prevention of Unfair Labor Practices

29 C.F.R. § 102.31

Issuance of subpoenas; petitions to revoke subpoenas; rulings on claim of privilege against self-incrimination; subpoena enforcement proceedings; right to inspect or copy data

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(a) The Board or any Board Member will, on the written application of any party, issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence, electronic data, or documents, in their possession or under their control. The Executive Secretary has the authority to sign and issue any such subpoenas on behalf of the Board or any Board Member. Applications for subpoenas, if filed before the hearing opens, must be filed with the Regional Director. Applications for subpoenas filed during the hearing must be filed with the Administrative Law Judge. Either the Regional Director or the Administrative Law Judge, as the case may be, will grant the application on behalf of the Board or any Member. Applications for subpoenas may be made ex parte. The subpoena must show on its face the name and address of the party at whose request the subpoena was issued.

(b) Any person served with a subpoena, whether ad testificandum or duces tecum, if that person does not intend to comply with the subpoena, must, within 5 business days after the date of service of the subpoena, petition in writing to revoke the subpoena. The date of service for purposes of computing the time for filing a petition to revoke is the date the subpoena is received. All petitions to revoke subpoenas must be served on the party at whose request the subpoena was issued. A petition to revoke, if made prior to the hearing, must be filed with the Regional Director and the Regional Director will refer the petition to the Administrative Law Judge or the Board for ruling. Petitions to revoke subpoenas filed during the hearing must be filed with the Administrative Law Judge. Petitions to revoke subpoenas filed in response to a subpoena issued upon request of the Agency's Contempt, Compliance, and Special Litigation Branch must be filed with that Branch, which will refer the petition to the Board for ruling. Notice of the filing of petitions to revoke will be promptly given by the Regional Director, the Administrative Law Judge, or the Contempt, Compliance and Special Litigation Branch, as the case may be, to the party at whose request the subpoena was issued. The Administrative Law Judge or the Board, as the case may be, will revoke the subpoena if in their opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The Administrative Law Judge or the Board, as the case may be, will make a simple statement of procedural or other grounds for the ruling on the petition to revoke. The petition to revoke any opposition to the petition, response to the opposition, and ruling on the petition will not become part of the official record except upon the request of the party aggrieved by the ruling, at an appropriate time in a formal proceeding rather than at the investigative stage of the proceeding.

(c) Upon refusal of a witness to testify, the Board may, with the approval of the Attorney General of the United States, issue an order requiring any individual to give testimony or provide other information at any proceeding before the Board if, in the judgment of the Board:

(1) The testimony or other information from such individual may be necessary to the public interest; and

(2) Such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination. Requests for the issuance of such an order by the Board may be made by any party. Prior to hearing, and after transfer of the proceeding to the Board, such requests must be made to the Board in Washington, DC, and the Board will take such action thereon as it deems appropriate. During the hearing, and thereafter while the proceeding is pending before the Administrative Law Judge, such requests must be made to the Administrative Law Judge. If the Administrative Law Judge denies the request, the ruling will be subject to appeal to the Board, in Washington, DC, in the manner and to the extent provided in § 102.26 with respect to rulings and orders by an Administrative Law Judge, except that requests for permission to appeal in this instance must be filed within 24 hours of the Administrative Law Judge's ruling. If no appeal is sought within such time, or if the appeal is denied, the ruling of the Administrative Law Judge becomes final and the denial becomes the ruling of the Board. If the Administrative Law Judge deems the request appropriate, the Judge will recommend that the Board seek the approval of the Attorney General for the issuance of the order, and the Board will take such action on the Administrative Law Judge's recommendation as it deems appropriate. Until the Board has issued the requested order, no individual who claims the privilege against self-incrimination will be required or permitted to testify or to give other information respecting the subject matter of the claim.

(d) Upon the failure of any person to comply with a subpoena issued upon the request of a private party, the General Counsel will, in the name of the Board but on relation of such private party, institute enforcement proceedings in the appropriate district court, unless in the judgment of the Board the enforcement of the subpoena would be inconsistent with law and with the policies of the Act. Neither the General Counsel nor the Board will be deemed thereby to have assumed responsibility for the effective prosecution of the same before the court.

(e) Persons compelled to submit data or evidence at a public proceeding are entitled to retain or, on payment of lawfully prescribed costs, to procure copies or transcripts of the data or evidence submitted by them. Persons compelled to submit data or evidence in the nonpublic investigative stages of proceedings may, for good cause, be limited by the Regional Director to inspection of the official transcript of their testimony, but must be entitled to make copies of documentary evidence or exhibits which they have produced.

Notes of Decisions
Cited in 33 cases (2 in the last 5 years), 1962–2026 · leading case: Nat'l Labor Relations Bd. v. Interbake Foods, LLC, 637 F.3d 492 (4th Cir. 2011).
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Nat'l Labor Relations Bd. v. Interbake Foods, LLC, 637 F.3d 492 (4th Cir. 2011). · cites it 2× “See 29 C.F.R. §§ 102.31 (b), 102.26. The Act provides that the hearings “shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts.”
Ryser v. State, 284 P.3d 337 (Kan. 2012). · cites it 2× “§ 161 (1) (2006) (authorizing National Labor Relations Board (NLRB) to issue subpoenas and providing 5-day time frame within which subpoenaed party may petition NLRB to revoke subpoena) with its interpreting regulation, 29 C.F.R. § 102.31 (b) (2011) (“Any person served with a…”
SSC Mystic Operating Co., LLC v. Nat'l Labor Relations Bd., 801 F.3d 302 (D.C. Cir. 2015). · cites it 2× “29 C.F.R. § 102.31 . Exercising that power, Mystic subpoenaed any records of telephone calls between Mackin and the Union organizer assigned to the election.”
Nat'l Labor Relations Bd. v. Frazier, 144 F.R.D. 650 (D.N.J. 1992). · cites it 6× “Because Frazier still refused to testify, Local 32B requested the NLRB to institute an enforcement proceeding pursuant to 29 C.F.R. § 102.31 (d) (1992). 3 Intervention Brief at 2.”
Nat'l Labor Relations Bd. v. North Bay Plumbing, Inc. Patrick Pettit Elmer Lee Pettit David A. Adams, 102 F.3d 1005 (9th Cir. 1996). · cites it 2× “See 29 C.F.R. § 102.31 . The regulation contains’ no language limiting its application to post-complaint subpoenas.”
Equal Emp. Opportunity Comm'n v. Lutheran Soc. Servs., 186 F.3d 959 (D.C. Cir. 1999). “” 29 C.F.R. § 102.31 (b) (1999). Not surprisingly in 1972, the same year Title VII was amended to give the EEOC the investigatory powers of the NLRB, the EEOC issued a virtually identical regulation, see 37 Fed.”
Vokas Provision Co., D/B/A the Rich Plan of W. Reserve v. Nat'l Labor Relations Bd., 796 F.2d 864 (6th Cir. 1986). · cites it 2× “§ 161 (1); see also 29 C.F.R. § 102.31 (a) (1985). Once a subpoena is issued, the Board’s Rules and Regulations provide for only four methods of service: “[Sjubpoenas of the Board .”
Nat'l Labor Relations Bd. Ex Rel. United Food & Com. Workers Int'l Union v. Fresh & Easy Neighborhood Mkt., Inc., 805 F.3d 1155 (9th Cir. 2015). · cites it 4× “29 C.F.R. § 102.31 (b). The Union never served the subpoena on Fresh & Easy’s counsel of record.”
Boston Police Superior Officers Fed'n v. City of Boston, 608 N.E.2d 1023 (Mass. 1993). “29 C.F.R. § 102.31 (b) (1992). If a party moving for revocation or modification of the subpoena is aggrieved by the administrative law judge’s ruling, that party may request that the issue be made part of the record transmitted to the board for appeal purposes.”
Drukker Commc'ns, Inc., & Its Wholly Owned Subsidiary, the Daily Advance, Inc. v. Nat'l Labor Relations Bd., 700 F.2d 727 (D.C. Cir. 1983). “” 29 C.F.R. § 102.31 (b) (1981). Besides the subpoena section of the Act, two other provisions of law are pertinent.”
Nat'l Labor Relations Bd. v. Joseph MacAluso Inc., D/B/A Lemon Tree, 618 F.2d 51 (9th Cir. 1980). “The NLRB’s own regulation authorizing revocation states: The administrative law judge or the [NLRB] as the case may be, shall revoke the subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the…”
Hedison Mfg. Co. v. Nat'l Labor Relations Bd., 643 F.2d 32 (1st Cir. 1981). “” 29 C.F.R. 102.31(b). Instead, counsel contented himself with the statement that in his opinion “the subpoena by its own terms is void, and there would be no point in my moving to quash it.”
Show all 33 citing cases →
— 29 C.F.R. § 102.31(b) — 4 cases
Hedison Mfg. Co. v. Nat'l Labor Relations Bd., 643 F.2d 32 (1st Cir. 1981). “” 29 C.F.R. 102.31(b). Instead, counsel contented himself with the statement that in his opinion “the subpoena by its own terms is void, and there would be no point in my moving to quash it.”
Herman Bros. Pet Supply, Inc. v. Nat'l Labor Relations Bd., 360 F.2d 176 (6th Cir. 1966).
Nat'l Labor Relations Bd. v. Q-T Shoe Mfg. Co., 279 F. Supp. 1 (D.N.J. 1968).
Nat'l Labor Relations Bd. v. Uber Tech., Inc., 216 F. Supp. 3d 1004 (N.D. Cal. 2016).
— 29 C.F.R. § 102.31(d) — 2 cases
Wilmot v. Doyle, 403 F.2d 811 (9th Cir. 1968).
Wilmot v. Doyle, 403 F.2d 811 (9th Cir. 1968).
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