NLRB v. Fresh & Easy Neighborhood Mkt.

A party must file a petition to revoke a subpoena if it wants to make a claim that the subpoena has a defect, and therefore, is insufficient.

United Food and Commercial Workers Union (the “Union”) requested the National Labor Relations Board (“NLRB”) to issue a subpoena in connection to unfair labor practice charges by Fresh & Easy Neighborhood Market, Inc. (“Fresh & Easy”). The subpoena asked for documents relating to union organizing or activities, as well as company hotlines that mention union activity. The Union served Fresh & Easy’s counsel of record, but through email. Fresh & Easy’s counsel did not see the email until the night before the NLRB hearing. At district court, Fresh & Easy claimed that the subpoena was “improperly served and sought information that was irrelevant, overly broad, and unduly burdensome.” The district court ordered the subpoena duces tecum in advance of the hearing because it reasoned that the subpoena was served properly. On appeal, the Union argued that 29 Code of Federal Regulations § 102.113 did not apply to private parties. However, the Ninth Circuit disagreed because the Union’s interpretation can allow a private party to strategically avoid serving subpoenas properly. The panel also disagreed with the district court’s reasoning in regard to the subpoena service by noting that the serving of the subpoena was defective. The panel nonetheless agreed to enforce the subpoena because the defect was insufficient since Fresh & Easy did not try to revoke the subpoena in accordance with agency procedure. The panel found that Fresh & Easy failed to meet the exhaustion requirement and no prejudice was present to exempt it from the requirement because Fresh & Easy did not file a petition to revoke. AFFIRMED.