Fresh & Easy Subpoena|Enforcement Affirmed

(CN) - The West Coast supermarket chain Fresh & Easy must comply the subpoena it faced from a union in advance of a National Labor Relations Board hearing, the Ninth Circuit ruled Friday.

With 170 stores in California, Nevada and Arizona to its name as of 2012, Fresh & Easy Neighborhood Market has been embroiled in a controversy over signs it posted at four California locations that state, "Sorry but we don't allow solicitation, loitering or the posting of flyers."

After the United Food and Commercial Workers Union filed a charge with the National Labor Relations Board, Fresh & Easy held firm that the signs did not violate the National Labor Relations Act.

In anticipation of a July 19, 2011, hearing before the NLRB, the union subpoenaed Fresh & Easy for "documents which concern, mention or relate to any union organizing or union activities."

The union effected service of the subpoena by having the papers couriered to Fresh & Easy's place of business, and the market in turn emailed a copy of the subpoena to its lawyers.

Counsel for the market apparently overlooked the email, however, until the night before the hearing.

Having failed to bring the requested documents to the hearing, Fresh & Easy argued that the union failed to properly serve the subpoena on counsel. It also said that the subpoena sought evidence outside the scope of the complaint.

Since the company had not petitioned to revoke the subpoena, however, the administrative law judge did not entertain the market's arguments.

At the union's request, the NLRB asked a federal judge to enforce the subpoena.

The U.S. District Court for the Central District of California granted the application, and a three-judge panel of the Ninth Circuit affirmed Friday, albeit on different grounds than the lower court reached.

"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," Judge Marsha Berzon wrote for the Pasadena panel.

Fresh & Easy should have challenged the subpoena before the board, the court said.

"An exhaustion requirement is especially appropriate here given that objection to the subpoena is its alleged irrelevancy, lack of particularity and overbreadth," Berzon added.

The union was also required to serve the subpoena to Fresh & Easy's counsel.

"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," Berzon wrote.

The fact that the union served the subpoena to the market, however, "does not constitute grounds for revoking a subpoena, absent a showing of prejudice," the judge added.

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