U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C. 20001-8002
Date Issued: April 9, 1992
Case No.: 92-TSC-2
In the Matter of
Robert Scott
Complainant
v.
Alyeska Pipeline Service Company
Respondent
ORDER DENYING MOTION TO COMPEL APPEARANCE
OF WAYNE BLACK
Complainant, alleging that Wayne Black, a former employee
of Wackenhut Corporation, has been effectively served with a
subpoena and has refused to testify at a deposition scheduled for
March 20, 1992, and further contending that Mr. Black has refused
to answer any questions on the basis of his privilege against
self-incrimination, has requested that a hearing be setup on the
question of Mr. Black's non-appearance and alleged preemptive
refusal to answer any questions. Complainant also requests that
he be permitted to draw adverse inferences based on Mr. Black's
refusal to testify and offer Mr. Black's records into evidence
without authentification.
Complainant's motion and requested orders are all premised
on one contention: that Mr. Black has been effectively served
with a subpoena. However, the affidavit of James Martin, the
process server who attempted to serve the subpoena, establishes
that service of the subpoena on Mr. Black was not achieved.
Further, nothing in this affidavit indicates, as alleged by the
complainant, that Mr. Black deliberately evaded service. Rather,
the affidavit shows that Mr. Black was cooperative. He was not
served because he was out of town on the two instances where
personal service was attempted, on March 13 and 17, 1992.
Further, although Mr. Black indicated that he would be returning
[Page 2]
to Miami on March 23rd, no attempt was made to reschedule the
deposition and serve him after his return to Miami.
1 It should be noted that 29 C.F.R.
§ 18.24 (a) permits the
service of subpoenas by certified mail. Apparently, complainant
did not exercise this option
2 On April 9, 1992, subsequent
to drafting this Order, I
received an opposition to complainant's motion to compel filed by
counsel for Mr. Black. Since this order is consistent with the
position taken by Mr. Black's counsel, and the affidavits from
counsel and Mr. Black are consistent with the statements in the
process server's affidavit, I found no reason to revise the Order
already draft.