National Labor Relations Board Ex Rel. United Food & Commercial Workers International Union v. Fresh & Easy Neighborhood Market, Inc. , 805 F.3d 1155 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 12-55828
BOARD, On Relation of the United
Food and Commercial Workers D.C. No.
International Union, 2:11-cv-10070-
Petitioner-Appellee, CBM-FMO
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION, OPINION
Intervenor-Plaintiff–Appellee,
v.
FRESH AND EASY NEIGHBORHOOD
MARKET, INC.,
Respondent-Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted
February 6, 2014—Pasadena, California
Filed November 13, 2015
2 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
Before: Harry Pregerson, Michael R. Murphy*,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
SUMMARY**
Subpoena
The panel affirmed the district court’s order enforcing a
subpoena duces tecum that the United Food and Commercial
Workers Union served on Fresh and Easy Neighborhood
Market, Inc. in advance of a hearing before the National
Labor Relations Board.
The panel disagreed with the district court’s holding that
the subpoena was properly served, but affirmed the order to
comply with the subpoena on different grounds. The panel
affirmed the decision to enforce the subpoena because
exhaustion was required and Fresh & Easy suffered no
prejudice that would excuse it from that requirement.
Specifically, the panel held that the Union failed to meet its
procedural obligations when it neglected to serve the
subpoena on Fresh and Easy’s counsel of record. The panel
further held that although service of the subpoena was
defective, the defect was insufficient to excuse Fresh and
*
The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NLRB V. FRESH & EASY NEIGHBORHOOD MKT. 3
Easy from the obligation to file a petition to revoke the
subpoena in accordance with agency procedure. The panel
further held that its finding that Fresh and Easy was not
prejudiced precluded consideration of the merits-based
challenges to the subpoena’s validity, as the Board did not
consider those claims.
COUNSEL
Stuart Newman (argued), Seyfarth Shaw LLP, Atlanta,
Georgia; Joshua L. Ditelberg, Seyfarth Shaw LLP, Chicago,
Illinois, for Respondent-Appellant.
David A. Rosenfeld (argued) and Sean D. Graham, Weinberg,
Roger & Rosenfeld, Alameda, California, for Petitioner-
Appellee.
OPINION
BERZON, Circuit Judge:
Petitioner-Appellee United Food and Commercial
Workers Union (the “Union”) asks this court to enforce a
subpoena duces tecum it served on Respondent-Appellant
Fresh & Easy Neighborhood Market, Inc. (“Fresh & Easy”)
in advance of a hearing before the National Labor Relations
Board (the “NLRB” or “Board”). The Board issued the
subpoena at the Union’s request in connection with charges
that Fresh & Easy engaged in unfair labor practices by stifling
union activity.
4 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
Fresh & Easy did not contest the validity of the subpoena
by requesting within five days of service that the Board
revoke the subpoena, as required by the National Labor
Relations Act (the “NLRA” or the “Act”) and its
corresponding Board regulations. See 29 U.S.C. § 161;
29 C.F.R. § 102.31(b). Fresh & Easy contends that it missed
the filing deadline because the Union did not serve Fresh &
Easy’s counsel of record with a copy of the subpoena; only
the party was served.
The district court held the subpoena properly served and
ordered Fresh & Easy to comply with the Union’s requests.
Fresh & Easy timely appealed. We disagree with the district
court’s conclusion but affirm the order to comply with the
subpoena on different grounds.
I.
As of January 2012, Fresh & Easy operated a chain of
approximately 170 grocery stores, with locations in
California, Nevada, and Arizona. Beginning in December
2010, Fresh & Easy posted signs near the entrances of at least
four of its California stores reading, “Sorry but we don’t
allow solicitation, loitering or the posting of flyers.”
In January 2011, the Union filed an unfair labor practices
charge with the Board. The charge alleged that the
maintenance of the signs constituted a violation of the NLRA,
see 29 U.S.C. § 158(a)(1), by interfering with, restraining, or
coercing employees in the exercise of their rights protected
NLRB V. FRESH & EASY NEIGHBORHOOD MKT. 5
under the Act.1 Pursuant to that charge, the General Counsel
of the NLRB filed a complaint against Fresh & Easy before
the Board. Fresh & Easy answered the complaint, denying
that it had violated the Act. A hearing before an
Administrative Law Judge (“ALJ”) was held on July 19,
2011.
In preparation for the hearing, the Union sought and the
Board provided a blank subpoena duces tecum. On July 8,
the Union served the completed subpoena duces tecum on
“Hugh Cousins and/or the Custodian of Records of Fresh &
Easy Neighborhood Market” by courier at Fresh & Easy’s
principal place of business. As pertinent here, the subpoena
sought “[a]ll documents which concern, mention, or relate to
any union organizing or union activities” and “[a]ll
documents maintained on any company hotline or similar
message system which concern [sic] mention, relate or refer
to union activity.”2 Any petition to revoke the subpoena was
due in writing within five days of service. 29 C.F.R.
§ 102.31(b).
The Union never served the subpoena on Fresh & Easy’s
counsel of record. But prior to the hearing, Fresh & Easy sent
a copy of the subpoena to its counsel by email. It is not clear
1
The Act provides, in relevant part: “Employees shall have the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection . . . .” 29 U.S.C. § 157.
2
After the enforcement application was filed, the parties reached a
stipulation resolving the disputes related to seventeen of the nineteen
requests made in the subpoena. Accordingly, only two requests remain at
issue.
6 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
from the record exactly when counsel received the client
email, but Fresh & Easy never suggested, and has not
established, that it was after the deadline to file a petition to
revoke. Fresh & Easy’s counsel simply overlooked the email
“until the evening of July 18, 2011, the night before the
hearing at which production of the subpoenaed documents
would have been required.”
At the hearing, Fresh & Easy did not produce documents
responsive to the subpoena. Instead, it argued that the
subpoena was invalid because it had not been served on Fresh
& Easy’s counsel and because it sought evidence outside the
scope of the General Counsel’s complaint. The ALJ declined
to entertain Fresh & Easy’s arguments in absence of a petition
to revoke, and left the record open following the hearing to
permit the Union to decide whether to seek enforcement of
the subpoena. Thereafter, the Union requested that the
NLRB, through its General Counsel, initiate enforcement
proceedings. See 29 C.F.R. § 102.31(d).
Fresh & Easy subsequently filed a motion to close the
record before the ALJ, arguing that because the General
Counsel had already rested its case, supplementation of the
record was unnecessary. The ALJ denied Fresh & Easy’s
motion, holding that “[u]ntil the subpoena enforcement
proceedings are concluded, this record will remain open and
the matter postponed indefinitely.” The ALJ again declined
to address Fresh & Easy’s argument that the subpoena was
invalid.
Fresh & Easy then filed a motion with the NLRB seeking
special permission to appeal from the ALJ’s ruling,
maintaining that because the Union did not serve the
subpoena on counsel, Fresh & Easy had no obligation to
NLRB V. FRESH & EASY NEIGHBORHOOD MKT. 7
petition to revoke it. Fresh & Easy also argued that even if a
petition to revoke was called for, the ALJ should still have
considered the present relevance and burden of the subpoena,
particularly given that the General Counsel had already rested
its case, to determine whether enforcement of the subpoena
would be “inconsistent with law and with the policies of the
act.” 29 C.F.R. § 102.31(d).
The Board granted the request for special permission to
appeal the ALJ’s ruling but denied the appeal on the merits.
After ruling that Fresh & Easy “failed to establish or even
allege that it suffered any prejudice from the charging Party’s
failure to serve the subpoena on the Respondent’s counsel,”
the Board determined that proceedings to enforce the
subpoena were appropriate despite the General Counsel’s
having rested its case. In support of that conclusion, the
Board determined that “General Counsel’s right to control the
theory of the case does not preclude the Charging Party from
introducing evidence at the hearing once it receives
documents in response to its subpoena.” Finally, the Board
noted that Fresh & Easy never filed a petition to revoke the
subpoena, and that such a petition “would have been the
appropriate vehicle for raising any issue regarding its
validity.” The Board therefore declined to rule on the
substantive validity of the subpoena.
Shortly thereafter, pursuant to 29 U.S.C. § 161(2), the
Board filed an application on behalf of the Union to enforce
the subpoena in the United States District Court for the
Central District of California. The Union intervened and took
responsibility for the application. Fresh & Easy opposed
enforcement on the grounds that the subpoena was
8 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
improperly served and sought information that was irrelevant,
overly broad, and unduly burdensome.3
The district court granted the application to enforce the
subpoena. It held that the subpoena was properly served,
because the governing statutes and regulations do not require
a private party to serve papers upon a party’s attorney. On
the merits, the district court found that the requests were
relevant to the proceeding and not overly broad nor unduly
burdensome.
II.
“We review de novo a district court’s decision regarding
enforcement of an agency subpoena.” N.L.R.B. v. N. Bay
Plumbing, Inc., 102 F.3d 1005, 1007 (9th Cir. 1996);
E.E.O.C. v. Fed. Exp. Corp., 558 F.3d 842, 846 (9th Cir.
2009). In deference to the Board’s interest and expertise in
managing the cases before it, we generally will not entertain
a challenge to a subpoena that was not first brought before the
Board. See E.E.O.C. v. Cuzzens of Ga., Inc., 608 F.2d 1062,
1063 (5th Cir. 1979) (“Generally, one who has neglected the
exhaustion of available administrative remedies may not seek
judicial relief.”); E.E.O.C. v. Hennepin Cnty., 623 F. Supp.
29, 31–32 (D. Minn. 1985) (“A party’s failure to attempt [the]
administrative appeal procedure prevents the party from
challenging the subpoena, except on constitutional
grounds.”).
Because we determine that exhaustion was required and
that Fresh & Easy suffered no prejudice that would excuse it
3
Fresh & Easy also argued that the subpoena sought information that
might be privileged, but the district court did not address this claim.
NLRB V. FRESH & EASY NEIGHBORHOOD MKT. 9
from that requirement, we affirm the decision to enforce the
subpoena.
III.
A. Service on Counsel
In neglecting to serve the subpoena on Fresh & Easy’s
counsel of record, the Union failed to meet its procedural
obligations. Section 102.113 of the Code, entitled “Methods
of service of process and papers by the Agency; proof of
service,” provides that “[w]henever these rules require or
permit the service of pleadings or other papers upon a party,
a copy shall also be served on any attorney or other
representative of the party who has entered a written
appearance in the proceedings on behalf of the party.”
29 C.F.R. § 102.113(f) (emphasis added).
The Union argues that section 102.113 does not apply to
private parties, as the heading indicates that it governs service
“by the Agency.” Because a representative of the Union
served the subpoena, the Union argues, section 102.114
governs.
The heading to section 102.114 reads: “Filing and service
of papers by parties; form of papers; manner and proof of
filing or service; electronic filings.” (Emphasis added). In
contrast to the preceding section, section 102.114 does not
explicitly require service on counsel. The Union therefore
concludes that it had no obligation to serve a subpoena on
Fresh & Easy’s counsel.
The Union’s interpretation of the regulations is untenable.
Section 102.113(f) states that service upon counsel is required
10 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
“[w]henever these rules require or permit the service of
pleadings or other papers upon a party.” 29 C.F.R.
102.113(f) (emphasis added). The most logical interpretation
is that “these rules” refers to the greater body of rules
governing service of process, be it service by the Board or by
parties. The only indication that section 102.113(f) applies
exclusively to service by the agency is contained in the
section heading. “But headings and titles are not meant to
take the place of the detailed provisions of the text.” Bhd. of
R.R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 528,
(1947); see also Fla. Dep’t of Revenue v. Piccadilly
Cafeterias, Inc., 554 U.S. 33, 47 (2008) (“[A] subchapter
heading cannot substitute for the operative text of the
statute.”).
Further, the regulations in part 102 differentiate between
“these rules,” and a “rule,” a “section,” or “provisions in a
section” of the rules. See, e.g., 29 C.F.R. §§ 102.114(a)
(referring to “these rules”), (c) (referring to “this section”),
(e)–(i) (referring to “this section,” “this rule,” and “these
rules”); 102.46(a) (referring to “section 10(c) of the Act,”
“these rules,” and “this section”), (d)(1) (referring to “this
section”), (e) (referring to “paragraphs (b) and (j) of this
section”), (f)(1) (referring to “paragraphs (c) and (j) of this
section”); 102.48(d)(2) (referring to motions filed “pursuant
to this section”); 102.67(e) (referring to “paragraph (d)(2) of
this section”); 102.69(e), (f) (referring to “this section” and
“provisions of this section”); 102.81 (referring to “the
provisions of §§ 102.77 and 102.78,” “the provisions of
§ 102.19,” “the provisions of § 102.80,” and “other sections
of the act”); 102.100 (referring to “§ 102.114(a) of these
rules” and “§ 102.114(b) of the rules”); 102.107 (referring to
“§ 102.114(b) of these rules”); 102.108 (same); 102.111
(referring to “these rules” and “this section of the rules”).
NLRB V. FRESH & EASY NEIGHBORHOOD MKT. 11
The same is true of the NLRB’s rulemaking documents. See,
e.g., Procedural Rules; Amendments, 51 Fed. Reg. 23744-01
(July 1, 1986) (codified at 29 C.F.R. pt. 102).
These sources evidence that the NLRB uses the terms
“these rules,” “this rule,” “this section,” and “the provisions
of this section” differently and consistently. We therefore
conclude that the NLRB intended that the term “these rules”
apply to all NLRB regulations, not just the provisions in a
particular section of them. See Gustafson v. Alloyd Co.,
513 U.S. 561, 568 (1995); cf. Gonzales v. Oregon, 546 U.S.
243, 274 (2006); Gen. Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581, 595–96 (2004); Estate of Cowart v. Nicklos
Drilling Co., 505 U.S. 469, 479–80 (1992). Thus,
“[w]henever these rules apply,” as used in section 102.113(f),
refers to all rules in part 102, not just to the other provisions
within section 102.113. Various treatises understand the
regulations to impose the same requirements. See 48A Am.
Jur. 2d Labor and Labor Relations § 1922 (2015)
(“Whenever the NLRB’s rules require or permit the service
of pleadings or other papers upon a party, a copy must also be
served on any attorney or other representative of the party
who has entered a written appearance in the proceeding on
behalf of the party.”); Location of and individuals to be
served, 11 Emp. Coord. Labor Relations § 41:15 (2015)
(same); Manner of service, 22 Fed. Proc., L. Ed. § 52:266
(2015) (same); Service of documents after initiation of
proceedings, 12APT1 Fed. Proc. Forms § 46:65 (2015)
(same).
Language in the NLRB’s Casehandling Manual provides
support for this interpretation. The manual—compiled by the
General Counsel to “provide procedural and operational
guidance” to staff members in unfair labor practice
12 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
proceedings—does not distinguish between service by the
agency and service by private parties in discussing the
obligation to serve subpoenas on the recipient’s counsel.
NLRB CASEHANDLING MANUAL PART TWO Purpose of the
Manual, § 11778 (2007). By contrast, the manual does
distinguish between service by the agency and by private
parties in discussing payment of fees to subpoenaed
witnesses. A private party, but not the General Counsel, must
tender fees at the time of service. Id. §§ 11778–79.
Further, section 102.114—the section the Union believes
limits its service requirements—contains a cross reference to
section 102.113 indicating that all the requirements of that
section are incorporated into section 102.114: “The person or
party serving the papers or process on other parties in
conformance with § 102.113 and paragraph (a) of this section
shall submit a written statement of service thereof to the
Board stating the names of the parties served and the date and
manner of service.” 29 C.F.R. § 102.114(e). The most
natural reading of that subsection is that the “person or
party” serving process in accordance with section 102.114 is
also governed by the standards of section 102.113 and is
subject to the service-on-counsel requirement found in
section 102.113(f).
Finally, there is little logic to an interpretation that would
allow a private party, but not the Board, strategically to avoid
serving a subpoena on counsel, diminishing the recipient’s
ability to lodge a timely complaint. A subpoena imposes the
same obligations on the recipient and exposes the recipient to
the same penalties for noncompliance whether the subpoena
is served by the Board or by a private party. And when
counsel is involved in an ongoing proceeding, ethical rules as
well as established practice support service on the counsel,
NLRB V. FRESH & EASY NEIGHBORHOOD MKT. 13
not the client. See MODEL RULES OF PROF’L CONDUCT R. 4.2
(stating that a lawyer shall not communicate with a party
represented by another lawyer “unless the lawyer has the
consent of the other lawyer or is authorized to do so by law
or a court order”); CAL. RULES OF PROF’L CONDUCT R. 2-100
(same).
B. Prejudice
Although the Union was obliged to serve the subpoena on
Fresh & Easy’s counsel of record, we agree with the Board’s
conclusion that “failure to serve counsel does not constitute
grounds for revoking a subpoena, absent a showing of
prejudice.” Fresh & Easy Neighborhood Market, Inc. &
United Food & Commercial Workers Int’l Union, No. 21-
CA-39649, 2011 WL 5822393, at *2 (N.L.R.B. Nov. 16,
2011). In its proceedings before the ALJ and before the
Board on appeal, Fresh & Easy “failed to establish or even
allege that it suffered any prejudice from the Charging Party’s
failure to serve the subpoena on the Respondent’s counsel.”
Id. Without prejudice, the defective service did not invalidate
the subpoena ab initio, and Fresh & Easy was required to
bring any challenge to the subpoena through a petition to
revoke as prescribed by 29 U.S.C. § 161(1) and 29 C.F.R.
§ 102.31(b).
Fresh & Easy contends that it has in fact alleged prejudice
through its assertion that counsel’s late notice of the subpoena
prevented it from filing a timely petition to revoke. With no
venue to challenge the relevance of the subpoena in the
absence of a petition to revoke, Fresh & Easy was faced with
the undesirable options of complying with the subpoena’s
broad demands or risking contempt of court.
14 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
This reasoning overlooks that no evidence shows the
subpoena was transmitted to Fresh & Easy’s counsel after the
deadline to file a petition to revoke; Fresh & Easy’s counsel
admitted that the firm simply “overlooked” the email until the
eve of the hearing. To find prejudice in such circumstances
would require holding that receipt from the client rather than
the opposing party is prejudice per se. In declining to so
hold, we agree in the present circumstances with the Seventh
Circuit’s determination that where “respondents themselves
were personally served with a copy [of the subpoena,] [n]o
prejudice has been shown to have resulted because the Board
failed to serve counsel with a copy.” N.L.R.B. v. Playskool,
Inc., 431 F.2d 518, 520 (7th Cir. 1970).
Fresh & Easy argues that Playskool is not persuasive here
because, in that case, the respondent filed a timely petition to
revoke despite the lack of formal service on counsel. By
contrast, Fresh & Easy’s counsel never saw the email alerting
him to the subpoena until the filing deadline had passed.
Other situations might present reasons equitably to toll the
five-day filing deadline for a petition to revoke if counsel
received the subpoena later than he would have otherwise
because of the failure to serve him directly. Here, however,
the lawyer never filed a petition to revoke, so equitable
tolling of the filing deadline cannot save the day. We decline
to create a rule that would allow a lawyer with actual notice
of a subpoena to take no action, in hope that the charging
party will not seek enforcement, and to make objections only
if enforcement proceedings ensue. On this point we note that
we owe deference to an agency’s reasonable interpretation of
its statutes and regulations. N.L.R.B. v. Kentucky River Cmty.
Care, Inc., 532 U.S. 706, 721 (2001). We therefore give
weight to the interpretation that a proper objection to
allegedly improper service would have taken the form of a
NLRB V. FRESH & EASY NEIGHBORHOOD MKT. 15
petition to revoke, even if late by the usual measures. Absent
such a petition, whenever filed, Fresh & Easy cannot credibly
claim prejudice.
C. Exhaustion
Our finding that Fresh & Easy was not prejudiced
precludes consideration of the merits-based challenges to the
subpoena’s validity, as the Board did not consider those
claims.
In analogous situations, courts have held that failure to
file a timely petition to revoke a subpoena duces tecum issued
by the EEOC, which is governed by the same five-day filing
deadline and administrative appeals process as the NLRB,
bars a party from challenging enforcement of the subpoena on
all but constitutional grounds. See Cuzzens, 608 F.2d at
1063; Cnty. of Hennepin, 623 F. Supp. at 31–32. An
exhaustion requirement allows the agency, which is closer to
the facts of the underlying dispute, to have the first crack at
“interpretation and administration of its authorizing
substantive legislation.” E.E.O.C. v. Lutheran Soc. Servs.,
186 F.3d 959, 965 (D.C. Cir. 1999) (internal quotation
omitted); see also N.L.R.B. v. Pesante, 119 F. Supp. 444, 456
(S.D. Cal. 1954) (“The power of the Board to hear petitions
to revoke was placed in the board and the board only.”).
Excuse from the exhaustion requirement can be warranted
in exceptional circumstances. Lutheran Social Services
considered the merits of respondent Lutheran’s challenge to
a subpoena despite the fact that no timely petition to revoke
had been filed with the agency. The court concluded that
Lutheran might reasonably have been ignorant of the five-day
filing requirement. 186 F.3d at 965. The court based its
16 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
determination on the facts that, inter alia, 1) the subpoena
contained no reference to the five-day filing deadline nor
warning of the consequences of failure timely to challenge;
2) the agency investigator who issued the subpoena may have
inadvertently misled Lutheran into believing it had not
missed any deadlines; and 3) Lutheran did not base its
challenge on irrelevance or lack of particularity, which are the
two bases for revocation explicitly mentioned in 29 U.S.C.
§ 161(1) and which challenges the court might expect a party
to know it had to lodge with the agency. Id. at 964.
Likewise, E.E.O.C. v. Bashas’, Inc., in forgiving a party’s
untimely petition to revoke, considered it significant that the
“subpoena did not specify the five day time frame, or the
statutory or regulatory basis for that requirement.” No. CIV
09-0209 PHX RCB, 2009 WL 3241763, at *6 (D. Ariz. Sept.
30, 2009), order clarified, 2009 WL 5206632 (D. Ariz. Dec.
24, 2009). Additionally, the E.E.O.C. never notified the
challenging party that its petition to revoke, once filed, was
untimely. Id. at *7.
By contrast, the subpoena issued to Fresh & Easy clearly
noted the five-day deadline, cited the governing regulation,
and warned that “[f]ailure to follow these regulations may
result in the loss of any ability to raise such objections in
court.” Fresh & Easy does not dispute that it knew it was
required to file a petition to revoke, and the ALJ gave
consistent reminders of this obligation at the July 19 hearing.
Some of the ALJ’s initial comments suggested it was too
late to file a petition to revoke; at one point the ALJ stated:
“Well, I’m not going to entertain a motion to quash at this
point, because it wouldn’t be timely.” Later, however, the
ALJ made clear he would consider a challenge, telling Fresh
& Easy: “[Y]ou can file anything and obviously I would – I
NLRB V. FRESH & EASY NEIGHBORHOOD MKT. 17
have jurisdiction at this point over a motion to quash as the
record is still open.” Despite this explicit invitation, Fresh &
Easy “never filed or sought to file” a challenge to the
subpoena at the agency level.
An exhaustion requirement is especially appropriate here
given that Fresh & Easy’s substantive objection to the
subpoena is its alleged irrelevancy, lack of particularity, and
overbreadth.4 As Lutheran Social Services noted, “[i]n such
cases, exhaustion is important because the [agency] possesses
considerable expertise with respect to relevance and
particularity, expertise to which we would comfortably
defer.” 186 F.3d at 965. That the federal courts may enforce
a subpoena does not mean that this forum can be used to
circumvent the essential role of the Board in managing
discovery in the cases before it.
IV.
In sum, we hold that service was defective, but the defect
was insufficient to excuse Fresh & Easy from the obligation
to file a petition to revoke the subpoena in accordance with
4
Lutheran Social Services suggests that a challenge based on privilege,
at issue in that case, may appropriately be considered without exhaustion,
as privilege is an area in which federal courts, as opposed to agencies,
have superior expertise. 186 F.3d at 965. Although Fresh & Easy’s
briefing purports to raise a privilege claim in addition to the other
challenges, the privilege argument is too perfunctory to merit
consideration. “The party asserting a privilege bears the burden of
proving that it is applicable.” CNN Am., Inc., 352 N.L.R.B. 448, 448–49
(2008). Fresh & Easy’s brief states only that the subpoena “could”
produce privileged information without providing a single example of a
privileged document that might be encompassed in the Union’s request.
This conclusory and speculative assertion is far from sufficient to establish
a claim of privilege.
18 NLRB V. FRESH & EASY NEIGHBORHOOD MKT.
agency procedure. This procedure safeguards the Board’s
ability competently and expediently to adjudicate disputes.
That purpose would be frustrated were we to reach the merits
of Fresh & Easy’s challenge without a prior Board decision
on that issue. In light of these conclusions, we uphold the
district court’s order enforcing the subpoena.
AFFIRMED.