FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS

BOARD, On Relation of the United

Food and Commercial Workers

International Union,

Petitioner-Appellee,

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION,

Intervenor-Plaintiff–Appellee,

v.

FRESH AND EASY NEIGHBORHOOD

MARKET, INC.,

Respondent-Appellant.

No. 12-55828

D.C. No.

2:11-cv-10070-

CBM-FMO

OPINION

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 PetitionerAppellee.

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.

improperlyserved 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. SeeMODELRULESOF PROF’LCONDUCT 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’LCONDUCTR. 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 fromsufficient 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.