F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N A T I O N A L L A B O R R E L

A T I O N S B O A R D , On Relation of the United F ood and Commercial W orkers I nternational Union,

Petitioner-Appellee

,

U N I T E D F O O D A

N D C O M M E R

C I A L W O R K E R S I N T E R N A T I O N A L U N I O N , I ntervenor-Plaintiff–Appellee

,

v

.

F R E S H A N D E A S Y N E I G H B O R

H O O D M A R K E T , I N C ., Respondent-Appellant

. N o. 12-55828

D.C. No. 2:11-cv-10070- CB M-F MO

OPI NI ON

A ppeal from the United States District Court for the Central District of California Consuelo B . Marshall, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 6, 2014—Pasadena, California

F iled November 13, 2015NL RB V

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B e fore: Harry

Preg erson, Michael R. Murphy *

, and Marsha S. B erz on, Circuit J udg es.

Opinion by J udg e B e rz on

SUMMARY * *

Subpoena

The panel affirmed the district court’s order enforcing a subpoena duces tecum that the United F ood and Commercial W o rkers Union served on Fr e s h and Easy Neig h borhood Market, I nc. in advance o f a h earing befor e the National L abor Relations B oard.

The panel disag reed with the district court’s holding that the subpoena was properly served, b ut a ffirmed the order t o

c o mply with the subpoena on different g rounds. The p a n el affirmed the decision to enforce t h e s u bpoena because

ex h aust i o n was required and F r e sh & Easy suffered no p rejudice that would e x cuse it from that r equirement

. Specifically

, the panel held that t h e Union failed to meet its procedural oblig a t i o n s when it neg lected to serve the subpoena on F resh and Easy ’s counsel of record. T h e panel further he l d t h a t althoug h service o f the subpoena was defective, the defect was insufficient to ex cuse F resh a nd

* T h e Ho n o rab le Mich ael R. Mu rp h y , Sen io r Circu it J u d g e f o r th e U .S. Co u rt o f A p peals f o r th e T en th

Circu it, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.NL RB V

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Easy from the oblig a t i o n to file a petition to revoke the subpoena in a ccordance with ag ency procedure. The panel further held that its f

i n d ing that F resh and Easy was not prejudiced precluded consideration of the merits-b a s ed challeng es to the subpoen a’s v alidity

, a s the B oard did not consider those claims.

COUNSEL

Stuart Newman (arg

ued), Sey f

a r t h Shaw L L P, Atlanta, Georg ia; J o shua L . Ditelberg

, Sey farth Shaw L L P, Chicag o, I llinois, for Respondent-Appellant.

David A. Rosenfeld (arg

ued) and Sean D. G r aham, W einberg

, Rog er & Rosenfeld, Alameda, Califo r n ia, for PetitionerAppellee.

OP INION

B ERZ ON, Circuit J udg e :

Petitioner-Ap pellee United F ood and Commercial W o rkers Union (t h e “ Union”) asks this court to enforce a sub p o ena duces tecum it served on Respondent-Appellant F resh & Easy Neig hborhood Market, I nc. (“Fr e s h & Easy ”) in advance of a hearing b efore t he N ational L abor Relations B oard (the “ NL RB ” or “B oard”). T h e B oard issued the subpoena at the U nion’s request in c o n necti o n w i th charg e s that F r esh & Easy eng ag ed in unfair labor practices by stifling union activity

.NL RB V

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F resh & Easy did not contest the validity of the subpoena by requesting within five d ay s of service th a t the B oard revoke the subpoena, as required by the Nat i o n al L abor Relations Act (the “NL RA” or the “Act”) and its

cor r e s p o n ding B oard reg ulations. See 29 U.S.C. § 161; 29 C.F .R. § 102.31(b). F resh & Easy contends that it missed the filing deadline b ecause the Union did not serve F r e sh & Easy ’s c ounsel of record with a copy of the subpoe n a ; o n ly the party was served.

The district court held the subpoena properly served a nd ordered F resh & Easy to comply w i t h the Union’s requests. F resh & Easy timely appealed. W e disag ree with the district court’s conclusion but a ffirm the order to comply with the subpoena on different g

rounds.

I

.

As of J anua r y 2 0 1 2
, F resh & Easy operated a chain o f
approx imately 170 g r ocery stores, wi t h locations in C alifornia, Nevada, and Ariz ona. B eg inning in Decemb e r 2010, F resh & Easy posted sig ns near the entrances of at least four of its California stores readi n g, “ S o rry but we don’t allow solicitation, loitering or the posting of fly ers.”

I n J a nuary 2011, the Union filed an unfair labor practices charg e with the B oard. T h e c h arg e alleg e d that the maintenance of the sig ns constituted a v iolation of the N L RA,

see 29 U.S.C. § 158(a)(1), b y interfering with, restraining

, o r coercing e mploy ees in the ex ercise of their rig hts p r o tectedNL RB V

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under the Act. 1 Pursuant to that charg e, the General Counsel of the NL RB filed a c o m p l a i n t ag ainst F resh & Easy before the B oard. F resh & Easy a n swered the complaint

, deny ing that it had v i o l a t e d the Act. A hearing before an Administrative L aw J u dg e (“AL J ”) w as h e ld on J uly 19, 2011.

I n pre p a ra t i on for the hearing

, the Union soug ht and the B oard pro v ided a blank subpoena duces tecum. On J uly 8, the Union served the c ompleted subpoen a duces tecum on “Hug h Cousins an d / or the Custodian of Records of F resh & Easy Neig h

b orhood Market” by courier at F resh & Easy ’s principal place of business. As pertinent here, the subpoena
soug h t “[ a] ll documents which concern, mention, or relate to any u nion org a

niz in g or union activities” and “[ a ] ll documents maintained o n any c ompany hotline or similar
messag e sy stem which concern [ sic] mention, relate or refer
to union activity .” 2 A ny petition to r evoke the subpoena was due in writing within five day s of service. 29 C

. F.R. § 102.31(b).

The Union never served the subpoena on F resh & Easy ’s counsel of record. B u t p rior to the h earing

, F resh & Easy sent

a copy of the subpoena to its counsel by email. I t is not clear

1 T h e A ct p ro v id es, in relev an t part: “ Em p lo y ees sh all h av e th e rig h t to self

- o rg an izatio n , to f

o rm , j o in

, o r as s ist lab o r o rg an izatio n s, to b arg ain

co llectiv ely th ro u g h rep resen t ativ es o f th eir o w n ch o o sin g , an d to en g ag e in o th er co n certed activ ities f o r th e p u rp ose o f co l l e c tiv e b arg ain in g or

o th er m u tu al aid o r p ro tectio n

. . . .” 2 9 U.S.C. § 1 5 7

.

2 A f ter th e en f

o rcem en t ap p l icatio n w a s fi l ed

, th e p arties reach ed a stip u latio n reso l v in g th e d isp u tes related to sev en teen of th e ni n e teen req u ests m ad e in th e su

b p oen a. A cco rd in g ly

, o n ly tw o req u ests rem ain at issu e.NL RB V

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from the record ex actly when counsel rece i v e d the client email, but F resh & E asy never su gge s t e d, and has not established, that i t was after the deadline to file a petition to revoke. F resh & Easy ’ s counsel simply o verlooked the email “until the evening of J u l y 18, 2011, the nig ht before the hearing a t which production of t h e s u bpoenaed documents would have been required.”

At the hearing

, F r esh & E asy did not produce documents responsive t o the subpoena. I nstead, it a rg ued that the subpoena w as invalid because it h ad n ot b een served on F resh & Easy ’ s counsel and because it soug ht evidence o utside the
scope o f the General Counsel’s complaint. The AL J declined
to entertain F r esh & Easy ’s arg uments in absence of a petition
to revo k e , and left the record open following the hearing to permit the Union to decide w hether t o seek enforcement o f the subpoena. Thereafter, the U n i on requested that the NL RB
, throug h its General Counsel, in i t i ate enforcement proceeding s. See 29 C.F .R. § 102.31(d).

F resh & Easy subseq u ently filed a motion to close the

re cord before the AL J
, arg uing that because the General Counsel had already rested its c ase, supplementation of the record was unnecessary

. The A L J d e n ied F resh & Easy ’s motion, h olding that “[ u] ntil the s ubpoena enforcement proceeding s are concluded, this record w ill remain open a nd the matter postponed indefinitely .” The AL J ag ain declined
to address Fresh & E asy ’s arg ument that the subpoena was invalid.

F resh & Easy then filed a motion with the NL RB seeking special permission to appeal from the A L J ’ s ruling

, maintaini n g that b ecause the Union did not serve the subpoena on counsel, F resh & Easy had no o b l i ga t i o n toNL RB V

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petition to revoke it. F resh & Easy also arg ued that even if a petition to revoke was called for, the AL J should still have considered the present relevance and burden of the subpoena, particularly g iven that the General Counsel had already rested i t s case, to determine w hether enforcement of the sub p o e n a would be “ inconsistent with law and with the policies of the act.” 29 C.F .R. § 102.31(d).

The B oard g ranted the request for special permi s sion to appeal the AL J ’s ruling but d eni e d the appeal on the merits. After r u l ing that F r esh & Easy “failed to establish or even alleg e that it suffered any prejudice from the c harg ing Party ’s f a i l u r e to serve the subpoena o n the Respondent’s counsel,” the B oar d determined that proceeding s to enforce the subpoena were appropri a t e despite the General Counsel’s having rested its case. I n support of that conclus i o n , the B oard determined that “General Counsel’s rig ht to c ontrol the theory of the case does not preclude the Charg ing Party from introducing e v i d ence at the hearing once it receives documents in response to its subpoena.” Fi n a l ly

, the B oard noted that F resh & Easy never filed a p e t i tion to r evoke the

su bpoena, and that such a petition “ would have been the appropriate vehicle for r aising any issue reg arding its validity .” The B o ard therefore declined to rule on the substantive validity

of the subpoena.

Shortly thereafter, pursuan t to 2 9 U.S.C. § 161(2), the B oard 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 a

pplication. F resh & Easy opposed enforcement on the g rounds tha t the subpoena wasNL RB V

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improperly served and soug ht information that was irrelevant, overly broad, and unduly

burdensome. 3

The district court g ran t ed the a p plication to enforce the subpoena. I t held that the subpoena was p roperly served, because the g overning statutes and reg ulations do not require

a private party to serve papers upon a party ’s a t t o r n e y

. On the merits, the d i s trict court found that the requests were relevant to the proceeding and n ot overly broad n o r u n d u ly burdensome.

I I

.

“W e review de novo a district court’s decision reg arding enforcement of an ag en c y s u b poena.” N.L.R.B. v. N. Bay Plumbing, Inc.
, 1 02 F .3d 1005, 1 0 0 7 (9th Cir. 1 996); E.E.O.C. v. Fed. Exp. Corp.
, 558 F. 3 d 842, 846 (9th Cir. 2 0 09). I n deference to the B oard’s interest and ex p ertise in
manag ing the cases before it, we g enerally will not entertain

a challeng e to a subpoena that was n ot first broug ht before the B oard. See E.E.O.C. v. Cuzzens of Ga., Inc.
, 608 F

. 2d 1062, 1063 ( 5th Cir. 1979) (“Generally

, one who h a s neg lected the

ex h austion of available administrative r emedies may n ot seek judicial relief.”); E. E .O.C. v. Hennepin Cnty.
, 623 F

. Supp. 29, 3 1–32 (D. Minn. 1985) ( “A party ’ s failure to attempt [ the] administrative appeal p rocedure prevents the p arty from challen gi n g the subpoena, ex cept on constitutional
g rounds.”).

B e cause we determine that ex haustion was required a nd that F r esh & Easy suffered no prejudice that would ex cuse it

3 Fresh & Easy a l s o a r g u e d th at th e s u b p oen a so u g h t in f

o rm atio n th at

m ig h t b e p riv ileg ed , b u t th e d istrict co u rt d i d n o t ad dress th is claim

.NL RB V

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from that r equirement, we affirm the decision to enforce the subpoena.

I I I

.

A. Service on Counsel

I n neg le cting to serve the subpoena on F resh & Easy ’s counsel of record, the Union failed to meet its p ro ce d u r al oblig ations. Section 102.113 of the Code, entitled “Methods of service o f p r o cess and papers by the Agency ; proof o f service,” provides that “[ w ] henever these r ule s r e quire o r permit the service of pleading s or other papers upon a party , a copy s h a l l a l so b e served on any attorney or other representative of t h e party who has entered a written
appearance in the proceedi n gs o n behalf of the p arty

. ” 29 C.F .R. § 102.113(f) (emphasis added).

The Union arg ues that section 102.113 does not apply to private parties, as the heading indicates that it g overns service

“ by the Ag ency

. ” B ecause a representative of the Un i o n served the sub p oena, the Union arg ues, section 102.114
g overns.

The heading to section 1 02.114 reads: “F iling a nd service of papers b

y parties ; form of papers; manner and proof o f filing or service; electronic filing s.” (Emphasis ad d e d )

. I n contrast to the preceding section, section 102.114 does not

ex p licitly r e q

uire service on counsel. The Union therefore concludes that it had no obl i ga t i o n to serve a subpoena on F resh & Easy ’s counsel.

The U nion’s interpretation of the reg ulations is untenable. Section 102.113(f) states that serv i ce upon counsel is r equiredNL RB V

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“[ w] henever these rules require or permit t h e s e rvice o f pleadi n gs o r other papers u pon a party .” 29 C.F .R. 102.113(f) ( emphasis added). The most log ical interpretation is that “these rules” r efers to the g reater body of rules
g overning service o f p rocess, be it service by the B oard or b y parties. The only indi ca t i o n that section 102.113(f) applies

ex cl u sively to service by the ag ency is contained in the section heading

. “ But heading s and titles are not meant to take the place of the detailed provisions of the tex t.” Bhd. of R.R. Trainmen v. Baltimore & O. R. Co.
, 331 U.S. 519, 528, (1947); see also Fla. Dep’t o f Revenue v. Piccadilly Cafeterias, Inc.
, 554 U.S. 33, 47 ( 2 008) (“[ A] subchapter heading c ann o t s u bstitute for the operative tex t of the statute.”).

F urther, the reg ulations in part 102 d ifferentiate b etween “these r u l e s ,” 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 ru l e s ” )

, (c) (referring to “this section”), (e)–(i) (referring to “this section,” “this rul e , ” and “these rules”); 102.46(a) ( referring to “ sec t i o n 1 0(c) of the Act,” “these rules,” and “this section”), ( d ) (1) (referring to “this section”), (e) (referring t o “ p a r ag raphs (b) and (j) o f this section”), (f)(1) ( r e f

er r ing to “ parag raphs (c) and (j) of this section”); 1 02.48(d)(2) (referring to motions filed “pursuant
to this section”); 102.67(e) (referring to “parag raph (d)(2) o f this section”); 102.69(e), (f) (referring to “this section” a nd “provision s o f this section”); 102.81 (referring to “the provisions of §§ 102.77 and 102.78,” “ t he provisions o f § 102.19,” “the provisions of § 102.80,” and “other sections of the act”); 102.100 ( refe r r i n g to “§ 102.114(a) of these rules” and “§ 102.114(b) of the r ules”); 102.107 (referring to “§ 102.114(b) of these rules”); 102.108 (same); 102.111 (referring t o “these rules” and “this section of the rules”).NL RB V

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The same is true of the NL RB ’s rulemaking documents. See
, e.g. , Procedural Rules; Amendments, 5 1 F ed. Reg

. 2 3744-01 (J uly 1, 1986) (codified at 29 C.F .R. pt. 102).

These sources evidence that the N L RB u ses the t erms “these rules,” “ this rule,” “this section,” and “the provisions of this section” differently and consistently

. W e therefore conclude that the NL RB intended that the term “these rules” apply to all N L R B r e g ulations, not just the provisions in a particular section of them. S e e G u s tafson v. Alloyd Co.
, 513 U .S. 561, 568 (1995); cf. Gonzales v. Oregon
, 546 U.S. 243, 274 (2006); G e n

. D ynamics Land Sys., Inc. v. Cline

, 540 U.S. 581, 595–96 ( 2 0 0 4 ) ; Estate of Cowart v. Nicklos Drilling Co.
, 505 U

. S

. 469, 4 79–80 (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. V arious treatises understand the
reg ulations to impose the same requirements. See 4 8A Am. J ur. 2d Labor and Labor Relations § 1922 (20 1 5 ) (“W henever the NL RB ’s rules require or p e r m i t the service of pleading s or other papers upon a p a r ty , a copy must also be served on any attorney or other r e p r e s entative of the party who has e ntered a written appearance in th e p r o c eeding on behalf of the party .”); Location of and ind i vi d u a l s to be served

, 11 Emp. Coord. L abor Relations § 41:15 (2015) (same); Manner of service
, 22 F ed. Proc., L

. E d

. § 52:266 (2015) (same); Service of d o c uments after initiation of proceedings

, 12APT1 F ed. Proc. F orms § 4 6 :65 (2015) (same).

L ang uag e in the NL RB ’s Casehandling Manual provides support for this interpretation. The manual—compiled by the General Counsel to “provide procedura l an d operational
g uidance” to s taff members in unfair labor practiceNL RB V

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proceed i n g s—does not disting uish between service by the
ag ency and service by private p arties in discussing the oblig ation to serve su b p oenas on the recipient’s counsel. NL RB C A S E H A

N D L I N G M A N U A L P A R T T W

O Purpose of the Manual, § 11778 (2007). B y contra s t , the manual does d i s ting uish between service by the ag ency and by private parties in d iscussin g pay ment of fees to subpoenaed witnesses. A private p arty , but n ot the G eneral Counsel, must tender fees at the time of service. Id. §§ 11778–79.

F urther, section 102.114—the section the Union believes limits its service requirements—contains a cross reference to section 102.113 i n d icating that all the requirements of that section are incorporated into section 102.114: “The person o r party serving the pape r s o r process on other parties in conformance with § 1 02.113 and parag raph (a) of this section shall submit a written statement of servi c e thereof to the B oard stating the names of the p arties served and the date a nd

manner of service.” 29 C.F .R. § 102.114(e). Th e most natural r eading of that subsection is t h a t t h e “person o r party ” serving process in accordance with section 102.114 is also g o verned by the standards o f section 102.11 3 and is subject to the servic e

- o n -counsel requirement found in section 102.113(f).

F inally

, there is little log ic to an interpretation that would allow a private party , but not the B oard, strateg ically to avoid serving a subpoena on counsel, d i minishing the r ecipient’s ability to lodg e a timely c omplaint. A subpoena imposes the

same oblig ations on the recipient a nd ex poses the recipient to the same penalties for noncompliance whether the subpoena is served by the B oard or by a private party

. And wh e n counsel is involved in an ong oing proceeding

, ethical rules a s well as established practice sup p o r t service on the counsel,NL RB V

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not the client. See M O D E L R U L E S O F P R

O F ’ L C O N D U C T R. 4.2 (stating that a lawy er shall not communicate with a party represented by a

nother lawy er “unless the lawy e r has the

co n sent of the other lawy er or is authoriz ed to do so by law

or a court order”); C A L

. R U L E S O F P R

O F ’ L C O N D U C T R. 2 -100 (same).

B. Prejudice

Althoug h the Union was oblig ed to serve the subpoena on F resh & Easy ’s counsel of record, we ag ree with the B oard’s conclusion that “failure to serve counsel d o e s not constitute
g rounds for revoking a subpoena, absent a showing o f prejudice

. ” Fresh & Easy Neighborhood Market, Inc. & United Food & Comm e r c i a l W o rkers Int’l Union
, No. 21- CA-39649, 2 011 W L 5822393, at *2 (N

. L

. R

. B

. Nov. 16, 2011). I n its proceeding s before t h e A L J and before the B oard on appeal, F resh & Easy “failed to e stablish or even alleg e that it suffered any prejudice from the Charg ing Party ’s failure to serve the subpoena o n the Re s p o n d ent’s counsel.” Id. W ithout prejudice, the defective service d id not invalidate the subpoena ab initio
, and F r esh & Easy was req u i r e d to bring any challeng e 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).

F resh & Easy contends that it has in f a ct alleg ed prejudice throug h its assertion that counsel’s late notice of the subpoena prevented it from f

iling a timely petition to revoke. W ith no

venue to challeng e the relevance of the su b p o ena in the absence of a petition to revoke, F resh & Easy was faced with the undesirable option s of comply ing with the subpoena’s broad demands or risking contempt of court.NL RB V

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This r easoning overlooks that no evidence shows the subpoena was transmitted to F resh & Easy ’s c ounsel a fter the deadline to file a petition to revoke; F resh & Easy ’s counsel admitted that the firm simply “overlooked” the email until the

e v e of the hearing

. To find prejudice in such circumstan c e s would require holding that receipt from the client rather than the opposing p arty is prejudice per se. I n declining to so hold, we ag r ee in the present circumstances with the Seventh Circuit’s determination that where “respondents t h emselves

were p ersonally served with a copy [ of the subpo e n a , ] [ n ] o prejudice has been shown to h ave resulted because the B oard failed to serve counsel with a copy .” N.L

. R

. B

. v. Playskool, Inc ., 431 F .2d 518, 520 (7th Cir. 1970).

F resh & Easy arg ues that Playskool is not persuasive here because, in that case, the respondent filed a timely petition to revoke despite the lack of formal se rv i ce on counsel. B y contrast, F resh & Easy ’s counsel never saw the email alerting him to the subpoena until the filing d e a dline had passed. Other situations mig ht present r easons equ i tably to toll the five-day f iling deadline for a petiti o n to revoke if counsel received the subpoena later than h e would have o t h e rw i se because of the failure to s e rve him d irectly

. Here, however, the lawy er never filed a petition to revoke

, s o equitable tolling of the filing deadline cannot save the day

. W e decline
to cr ea t e a rule that would allow a lawy er with a ctual notice of a subpoena to take no a c tion

, i n h ope that the charg ing party will n ot seek enforcement, and to make o b jections only if enforcement proceeding s ensue. On this point we note that

we owe deference to a

n ag e ncy ’s reasonable interpretation o f its statutes and reg ulations. N.L.R.B. v. Kentucky River Cmty. Care, I nc. , 532 U.S. 7 0 6
, 721 (2001). W e therefore g ive

we i gh t t o the interpretation that a proper objection to

a lleg edly improper service w ould have taken the form o f aNL RB V

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petition to revoke, even if late by the usual measures. Absent such a p etition, whenever filed, F resh & Easy cannot credibly claim prejudice.

C. Exhaustion

Our finding that F resh & Easy was n o t p rejudiced precludes consideration of the merits-based challeng es to the subpoena’ s validity

, as the B oard did not c onsider those claims.

I n a nalog o us situations, courts have held that failure to file a timely petition to r evoke a subpoena duces tecum issued by the EEOC, which is g overned by the same five-day filing deadline and administrative appeals process as the NL RB
, bars a party from challeng ing enforcement of the subpoena on all but constitutional g rounds. S ee Cuzzens
, 608 F .2d at 1063; Cnty

. o

f H e n nepin
, 623 F

. Supp. at 31–32. An

ex h austion requirement allows the ag e ncy , which is closer to t h e f a c t s o f the underly ing dispute, to have the first crack a t “interpretation and a dministration o f its authoriz ing substantive leg islation.” E .E.O

. C. v. Lutheran Soc. Servs.
, 186 F

. 3d 959, 965 (D. C

. C ir. 1999) (internal quotation omitted); see also N.L.R.B. v. Pesante
, 119 F

. Supp. 4 4 4, 456 (S.D. Cal. 1954) (“The p o we r o f the B oard to hear p e titions to revoke was placed in the board and the board only .”).

Ex cuse f rom the ex haustion requi r e m e n t can be warranted in ex ceptional circumstances. Luther a n Social S ervices considere d t he merits of respondent L utheran’s challeng e to

a subpoena despite the fact tha t n o t imely p etition to r evoke had been filed with the ag ency

. The court conclude d that L utheran mig ht reasonably have b een ig norant of the five-day filing requirement. 186 F .3d at 9 65. The court based itsNL RB V

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determination on t h e facts that, inter alia

, 1) the subpoena

c o n t ained no reference to the five-day filing deadline n o r warning of the consequences of f a i l u r e timely to challeng e; 2) the ag ency investig ator who issued the subpoena may have inadvertently misled L

uther a n into believing it had not missed any d e adlines; and 3) L utheran did not base its challeng e on irrelevance o r lack of particularity

, which are the
two bases for revocation e x plicitly mentioned in 2 9 U .S.C. § 161(1) and w hich challeng es the court mig ht ex pect a party to know it had to lodg e wi t h t h e ag ency

. Id. at 964. L ikewis e , E.E.O.C. v. Bashas’, Inc.
, in forg iving a party ’s untimely petition to r e v oke, c onsidered it sig nificant that the “subpoena did not specify the five day time frame, or the statutory or reg ulatory basis for that requirement.” No. CI V 09-0209 PHX RCB
, 2009 W L 3241763, at *6 (D. Ariz

. Sept. 30, 2009), order clarified

, 2009 W L 5206632 (D. A riz

. Dec. 24, 2009). Additionally

, the E.E.O.C. never notified the challeng in g p a r ty that its petition to revoke, o n ce filed, was untimely

. Id. at *7.

B y contrast, the subpoena issued to F resh & E a sy clearly noted the five-day deadline, cit ed t h e g overning reg ulation, and warned that “[ f] ailure to follo w t h ese reg ulations may result in the loss of any ability to raise such objections in court.” F r esh & Easy does not di s p u t e t hat it knew it was required to file a pet i t i o n t o revoke, and the AL J g ave consistent reminders of this oblig a tion at the J uly 1 9 hearing

.

Some of the AL J ’s initial comments sug g ested it was too late to file a p e t i t i on to r e v oke; at one point the AL J stated: “W e ll, I ’ m not g oing to entertain a motion to quash at this poi nt, because it wouldn’t be timely .” L ater, however, the AL J made clear he would consider a challeng e, telling F resh & Easy : “[ Y] ou can f

ile a n y t h i n g and obviously I would – INL RB V

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h ave jurisdiction at this point o ver a motion to quash as t h e record is still open.” Despite this ex plicit invitation, F resh & Easy “never filed or soug ht to file” a challeng e to the subpoena at the ag ency

level.

An ex haustion requirement is especially a ppropriate here
g iven that F resh & E a s y ’s substantive o b jection to the subpoena is its alleg e d irrelevancy , lack of particularity , and overbreadth. 4 As Lutheran S ocial Services noted, “ [ i] n such
cases, e x haustion is important b ecause the [ ag ency ] p ossesses considerable ex pertise with r e spect to relevance a nd particularity

, ex pertise to w hich we would comfortab l y defer.” 186 F .3d at 965. That the federal courts may e nforce

a subpoena does n o t mean that this forum c an be used to circumvent the esse n t i al role o f the B oard in manag ing discovery in the cases before it.

I V.

I n sum, we hold that service w as defective, but the defect

was insufficient to ex cuse F resh & Easy from the oblig ation
to file a p etition to revoke the s u b p o e na in accordance with

4 Lu th era n S

o cia l S ervices su g g ests th at a ch allen g e b ased o n p riv i leg e, at issu e in t

h at case, m ay ap p ro p riately b e co n sid ered w ith o u t ex h au s tio n , as p riv ileg e is an area i n w h ich f ed eral co u

rts, as o p p o sed to ag en cies, h a v e su p erio r ex p ertise. 18 6 F.3 d at 96 5

. A lth o u g h Fresh & Easy ’ s b rief in g p u rp o rts to raise a p riv i leg e cl a i m i n a d d itio n to t h e o th er ch allen g es, th e p riv ileg e arg u m en t is to o p erf u n cto ry to m erit

co n sid eratio n

. “ T h e p a rty assertin g a p riv ileg e b ears th e b u rd en of
p ro v in g th at it i s ap plicab le.” CNN Am., In c. , 3 5 2 N.L .R.B

. 4 4 8
, 4 4 8

– 4 9 (2 0 0 8). Fr e s h & E asy ’ s b rief states o n ly th at th e su b p o en a “ co u ld ”
p ro d u ce priv ileg ed i n f

o rm atio n w ith o u t p ro v id in g a sin g le ex am p le o f a p riv ileg ed d o cu m en t t

h at m ig h t b e en co m

p assed in th e Un io n ’ s r e qu est. T h is co n clu so ry an d sp ecu lativ e assertio n is f ar f ro m su f f icien t to estab lish a claim o f p riv ileg e.NL RB V

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ag ency procedure. This p rocedure safeg ua r ds the B oard’s ability competently and e x pedientl y to adjudicate disputes. That purpose would b e frustrated were we to reach the merits of F resh & Easy ’s challeng e w ithout a p rior B oard d eci s i on

o n t h at issue. I n lig h t of these conclusions, w e uphold t h e district court’s order enforcing the subpoena.

AF F IRMED.