NLRB v. Fresh & Easy Neighborhood Mkt.

The Union seeks enforcement of a subpoena duces tecum it served on Fresh & Easy before a hearing before the 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. 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 where only the party was served. The district court held that the subpoena was properly served and ordered Fresh & Easy to comply with the Union’s requests. The court concluded that, in neglecting to serve the subpoena on Fresh & Easy’s counsel of record, the Union failed to meet its procedural obligations. Although the Union was obliged to serve the subpoena on Fresh & Easy’s counsel of record, the court agreed with the Board’s conclusion that “failure to serve counsel does not constitute grounds for revoking a subpoena, absent a showing of prejudice.” In this case, Fresh & Easy cannot credibly claim prejudice where counsel never filed a petition to revoke the subpoena. The court's 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. Accordingly, the court upheld the district court's enforcement order. View "NLRB v. Fresh & Easy Neighborhood Mkt." on Justia Law