United States Court of Appeals, District of Columbia Circuit
OZARK AUTOMOTIVE DISTRIBUTORS, INC., DOING BUSINESS AS O'REILLY AUTO PARTS, PETITIONER
NATIONAL LABOR RELATIONS BOARD, RESPONDENT
Argued October 10, 2012.
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Jonathan A. Siegel argued the cause for petitioner. With him on the brief was Joseph E. Schuler.
Milakshmi V. Rajapakse, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney. Michelle M. Devitt, Trial Attorney, entered an appearance.
Before: TATEL, Circuit Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges. OPINION filed by Senior Circuit Judge RANDOLPH.
Randolph, Senior Circuit Judge :
This is a refusal-to-bargain case. The company contested the union's certification, after an election, as the bargaining representative of company employees. The National Labor Relations Board ordered the company to bargain with the union. The company petitioned for judicial review. The Board cross-petitioned for enforcement. The main issues are whether, during a hearing on the validity of the election, the hearing officer erred in revoking the company's subpoenas duces tecum, and if so, whether the error prejudiced the company.
After we heard oral argument we noticed that one of the Board Members on this case--Craig Becker--was a recess appointee. We therefore ordered the case held in abeyance pending the Supreme Court's review of Noel Canning v. NLRB, 705 F.3d 490, 403 U.S.App.D.C. 350 (D.C. Cir. 2013), cert. granted, 133 S.Ct. 2861, 186 L.Ed.2d 908 (2013). The Supreme Court issued its decision at the end of June 2014. NLRB v. Noel Canning, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014). On November 7, 2014, another panel of our court decided that Becker's appointment did not violate the Recess Appointments Clause of the Constitution. Mathew Enterprise, Inc. v. NLRB, 771 F.3d 812 (D.C. Cir. 2014). On December 8, 2014, we therefore issued an order placing this case back on the calendar. Order Granting Mot. to Lift Abeyance, Ozark Auto. Distribs., Inc. v. NLRB, No. 11-1320, (D.C. Cir. Dec. 8, 2014).
The company--Ozark Automotive Distributors, Inc., doing business as O'Reilly Auto Parts--is a retail distributor of automotive parts. On July 15, 2010, the Teamsters, Chauffeurs, Warehousemen, Industrial, and Allied Workers of America, Local 166, International Brotherhood of Teamsters, filed a petition with the Board to represent the " full-time and regular part-time route drivers" at the company's distribution center in Moreno Valley, California. The election took place on August 13, 2010. Of the thirty-two drivers eligible to vote, seventeen voted in favor of the union, fourteen voted against it, and one ballot was declared void.
The company filed objections, alleging that agents of the union engaged in threats, harassment, coercion, and appeals to racial prejudice, all of which interfered with employee free choice, so much so that it made " a fair election impossible." The objections were serious, not only because of their content, but also because the election was so close. The switch of two votes would have changed the outcome. After reviewing the company's objections and its supporting evidence, the Board's regional director ordered an evidentiary hearing to determine the validity of the company's charges.
Before the hearing began, the company served subpoenas duces tecum on the union and on Oscar Castillo, an employee the company alleged had been acting as a union agent. The subpoena to the union sought documents relating to the company, to its employees eligible to vote, and to each of several named employees " serving, acting or functioning as an agent, official, representative or steward of the Union." The subpoena to the union also sought information about communications between the union, including its representative Ruben Luna, and the company's employees, and between those employees the company alleged were acting as union agents--Oscar Castillo, Manuel Reyes, and Robert Castilleja.
The company's subpoena to Castillo sought telephone records and other documents relating to calls between Castillo and the union, and between Castillo and other employees eligible to vote in the election. (The relevant portions of both subpoenas are contained in an addendum.)
The union filed an objection to a portion of the subpoena, arguing that the " objected-to Requests are so vague and overbroad as to implicate information that is protected by the attorney-client and attorney work-product privileges." " The objected-to Requests," the union continued, " do not describe with any particularity the evidence whose production is required, and seek documents which clearly do not relate to the discrete issues framed in this case." At the hearing, Castillo--who was represented by the union's attorney--made an oral motion that the subpoena served on him should be revoked for the same reasons.
The hearing officer told the parties that she would not rule on the subpoenas until after she heard more evidence. Her reasoning was that the company might " get some of the evidence through testimony," and " [i]f not," she would " revisit this before the hearing closes." The company objected on the ground that deferring the ruling prejudiced its case. In response to the hearing officer's comment that the subpoenas requested documents from dates outside the " critical period" (the time between the filing of the representation petition and the election), the company offered to narrow the scope of the requests to the critical period. But the hearing officer repeated that she would postpone her decision about the subpoenas until the end of the hearing.
At the close of testimony, the hearing officer granted the union's and Castillo's
motions to revoke the subpoenas. Without having examined the documents the company sought, the hearing officer expressed concern about the employees' confidentiality interests and the need to protect their right to engage in union activity (their Section 7 rights). The hearing officer also questioned the relevance of some of the requests. She declined to narrow the scope of the subpoenas, explaining that she would not require the union or Castillo to produce any documents because of her " concern with possible Section 7 activity by employees."
The hearing officer recommended that the Board overrule the company's objections and certify the union. Although Castillo, Reyes, Castilleja, and Garcia " were the group of employees whose purpose was to organize employees in support of the" union, she found that they were not acting as union agents. As we explain later, the question therefore became whether the activities of these employees, acting independently of the union, had made " a free election impossible," as the company had alleged in the alternative. On that score, the hearing officer found against the company.
The company filed exceptions to the hearing officer's report and to her rulings on the subpoenas, including her decision to defer ruling until the close of testimony. With respect to the subpoenas, the company argued that its case " was severely restricted since it was not afforded the opportunity to obtain and review the documents and information responsive to the subpoena[s] in a timely manner and use them in its case in chief, in cross examination of the Union's witnesses, or in rebuttal." On appeal, the Board adopted the hearing officer's findings and recommendations and certified the union as the employees' collective-bargaining representative. Ozark Auto. Distribs., Inc., Case 21-RC-21222 (Mar. 31, 2011), 2011 WL 1210976 (N.L.R.B.). Member Hayes dissented. In his view, the hearing officer " failed to apply the correct test in revoking the subpoenas" because she improperly focused only on the employees' confidentiality interests and did not consider the employer's countervailing interests. (Member Hayes did not discuss other issues in the case.)
Unable to seek direct review of the Board's certification decision, see Boire v. Greyhound Corp., 376 U.S. 473, 476-80, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964), the company refused to provide information the union later requested in preparation for collective bargaining, and it refused to bargain with the union. The union filed an unfair labor practice charge against the company, and the Board's acting general counsel issued a complaint alleging that the company had violated § 8(a)(1) and § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5), by refusing the union's requests to bargain and to furnish information. The company admitted its refusal to bargain and its refusal to furnish information to the union, but it challenged the validity of the union's certification, claiming that the hearing officer erred in revoking the subpoenas.
Ozark Auto. Distribs., Inc., 357 N.L.R.B. No. 88, at 1 & n.2 (Sept. 8, 2011). The Board noted that the representation issues the company raised were (or could have been) litigated in the prior representation proceeding and that the company had not presented any special circumstances requiring the Board to reexamine its decision to certify the union. Id. The Board therefore concluded that the company's refusal to bargain and to furnish requested information violated the Act. Id. at 2.
The company mounts several arguments against the Board's certification of the union. We address only the company's contention that the hearing officer's decision to quash the subpoenas, and the Board's approval of that decision, constituted error. The company's opening brief also argued that the error was prejudicial for the reasons we will discuss below.
In the hearing under § 9(c) of the Act, 29 U.S.C. § 159(c), the company's principal objection was that in the days leading up to the election, union supporters engaged in misconduct and that four employees--Castillo, ...