Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: By Richa Amar & Jonathan Cohen
• Publication year: 2015
• Citation: Vol. 29 No. 3

NLRA Case Notes

By Richa Amar & Jonathan Cohen

Richa Amar is a staff attorney with the United Nurses Associations of California/Union of Health Care Professionals, a labor organization representing more than 20,000 health care professionals throughout Southern California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.

D.C. Circuit Holds That Hearing Officer Improperly Revoked Subpoena in Representation Proceeding

Ozark Automotive Distributors, Inc. v. NLRB, Nos. No. 11-1320 & 11-1352, 2015 WL 525134 (D.C. Cir. Feb. 10, 2015)

In a test-of-certification case, the D.C. Circuit unanimously held that a hearing officer's decision to revoke an employer's subpoenas in a representation proceeding constituted prejudicial error.

In July 2010, the International Brotherhood of Teamsters, Local 166 (union) filed a petition to represent the employer's route drivers in Moreno Valley, California. Following an election, seventeen votes were cast in favor of the union, and fourteen against it. Ozark Automotive Distributors, Inc. (company or employer) filed objections to the election, alleging that agents of the union engaged in threats, harassment, coercion, and appeals to racial prejudice, all of which interfered with free choice. The D.C. Circuit described the objections as "serious," "not only because of their content, but also because the election was so close."

Prior to a hearing on the employer's objections, the employer served subpoenas duces tecum on the union and Oscar Castillo, an employee the company alleged had acted as a union agent and who allegedly harassed other employees prior to the election. The employer's subpoena to the union sought documents relating to employees functioning as agents of the union, as well as communications between the union and various individuals, including Castillo. The employer's subpoena to Castillo sought telephone records and other documents relating to calls between Castillo and the union, and between him and other employees.

In response to motions to revoke the subpoenas by the union and Castillo, the hearing officer deferred ruling until after she heard more evidence, reasoning that the employer might obtain some of the evidence through testimony. Although the employer objected to a deferred ruling, the hearing officer did not reconsider her ruling. Then, at the conclusion of the hearing, and without having examined any of the responsive documents, the hearing officer granted the motions to revoke based on her "concern about the employees' confidentiality interests and the need to protect their right to engage in union activity." The hearing officer also recommended that the Board overrule the employer's objections.

The employer filed exceptions to the hearing officer's report, including her ruling on the motions to revoke. The Board affirmed, ruling that, even if the documents sought by the employer were relevant, the employer did not show that its need for the documents outweighed the employees' confidentiality interests protected by Section 7 of the National Labor Relations Act (Act). The employer then refused to bargain with the newly certified union.

On review of unfair labor practice charges challenging the employer's refusal to bargain, the D.C. Circuit observed that the critical issue in the employer's objections was whether various employees acted as agents of the union while engaging in alleged harassment and coercion of employees. Finding that the information sought by the subpoenas was relevant to that issue, the court held that the hearing officer never actually balanced the employer's need for the information against the employees' confidentiality concerns.

For example, the court pointed out that telephone records of calls between Castillo and the union, showing only the dates and times of the calls, would not reveal the content of conversations. As the court noted, "[w]e cannot see how these subpoenas would impinge on the privacy of employees so much so that the company's need for this information would be overwhelmed." Additionally, the court pointed out that counsel for the union had not objected to various questions by the company's lawyer regarding Castillo's communications with, and calls to and from, the union. Having allowed such questions, the court found that the union could not legitimately object to production of the phone records related to those calls.

Importantly, the court ruled that the hearing officer's failure to conduct an in camera review of the challenged documents, as the NLRB's Guide For Hearing Officer's suggests, was further error and prevented her from knowing what the documents would have shown. With such a review, she could have narrowed the scope of the subpoenas or ordered confidential information redacted instead of revoking the subpoenas altogether.

Lastly, relying in part on the hearing officer's finding that Castillo was not a credible witness, the court pointed out that "when a hostile witness realizes that examining counsel has information bearing on the answers to counsel's questions, the witness tends to be more candid." Assuming the sought-after documents would have favored the company—something that could have been avoided had the challenged documents been part of the record on review—the court found that "the company was deprived of this incentive for truthful and complete...