Labor & Employment Law Daily Wrap Up, LABOR—ORGANIZING, ELECTIONS—NLRB: Employer granted review of revocation of subpoena’s seeking union communications, (Sep 14, 2026)

By Ronald Miller, J.D.

The Board observed that at both the hearing and in its request for review, the employer articulated a particularized need for the information sought.

A divided three-member panel of the NLRB granted an employer’s request for review of a regional director’s decision that affirmed a hearing officer’s revocation of two subpoena requests made by the employer. After concluding that the regional director abused her discretion, the Board determined that review was limited to documentation pertaining to whether two employees intended to return to their struck positions after an election. Accordingly, the Board concluded that a limited remand for an in-camera inspection of the relevant documents sufficiently addressed the employer’s due process concerns and protected employees’ Section 7 rights. Member Prouty filed a separate dissenting opinion (John Henry Foster Minnesota, Inc., 375 N.L.R.B. No. 36 (Sept. 4, 2026)).

Voter eligibility. The central issue in this case is whether two employees were eligible voters as economic strikers or, instead, whether they were ineligible because they were not on strike, but rather, they had quit prior to a rerun election or otherwise abandoned their interest in their struck jobs.

The regional director found that the employer failed to prove that these individuals were ineligible, but only after revoking subpoenas issued by the employer seeking information relevant to their alleged job abandonment.

The first subpoena sought all communications and records between a union and one of the employees regarding his activities at the employer from January 1, 2022, through February 27, 2024. The second request sought the same information with respect to the second employee regarding his communications with the union related to his activities with the employer.

In camera review. At the outset of the hearing, the employer offered to discuss narrowing the term “activities” to protect sensitive information and specifically proposed that the subpoenaed information be reviewed in camera. When the union objected to the subpoenas, the hearing officer revoked them. The regional director affirmed that ruling, finding that the protection of employees’ Section 7 rights outweighed the employer’s need for the requested information.

The Board observed that at both the hearing and in its request for review, the employer articulated a particularized need for the information sought. Specifically, the employer sought to establish whether the first employee intended to quit after the election was completed, and to prove whether the second employee had abandoned his interest in his struck job. The Board concluded that these determinations were directly relevant and material to the central issue in this matter—whether the employees were eligible to vote in a rerun election, and consequently, whether their determinative challenged ballots should be opened and counted.

Moreover, the Board concluded that a limited remand for an in-camera inspection of the relevant documents sufficiently addressed the employer’s due process concerns and protected employees’ Section 7 rights.

Dissent. Member Prouty would deny the employer’s request for review. According to the dissent, the employer’s requests, on their face, overtly targeted the core of the employees’ protected Section 7 activity. Prouty pointed out that under Board law, where, as here, a subpoena seeks to uncover protected activity, the requesting party must establish a particularized need for the information sufficient to outweigh the serious intrusion into and compromise of statutorily protected rights that compelled disclosure would entail. The dissent argued that the hearing officer properly applied that standard in revoking the requests, and the regional director did not abuse her discretion in affirming that determination.

The slip opinion is 375 NLRB No. 36.

Attorneys: Phyllis Karasov (Larkin Hoffman Daly & Lindgren) for John Henry Foster Minnesota, Inc. Lance Geren (O’Donoghue & O’Donoghue) for Pipefitters Local 455.

Companies: John Henry Foster Minnesota, Inc.; Pipefitters Local 455

Cases: Labor OrganizingElections Procedure AgencyNews