MARGARET M. MORROW, District Judge.
On March 21, 2014 Vista del Sol Health Care Services, Inc. ("Vista") filed Case No. CV 14-02193 MMM (FFMx) (Vista), against the National Labor Relations Board, Region 31 ("the NLRB" or "the Board"), seeking a declaration that two subpoenas duces tecum issued by the NLRB are invalid and an injunction against their enforcement.
Vista operates a skilled nursing facility. Between October 18 and December 9, 2013, the Service Employees International Union, United Long Term Care Workers ("SEIU") filed fifteen charges with the Board alleging that Vista had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act ("the NLRA"), 29 U.S.C. § 158(a)(1) and (3).
After receiving the charges, the NLRB began to investigate the union's claims; as part of this investigation, it requested that Vista complete a Questionnaire on Commerce Information so that the Board could determine whether it had jurisdiction over Vista.
On November 10 and December 20, 2013, the Board's attorney, John Rubin, sent letters to Vista's attorney, Yolanda Flores-Burt, requesting that Vista present evidence responding to the allegations set forth in the charge.
In its position statements, Vista stated that the individuals in the photographs had been terminated not for pro-union activity, but for sleeping on the job.
On December 12, 2013, Rubin emailed Flores-Burt regarding deficiencies the Board had noted in the questionnaire submitted on October 23, 2013.
Vista did not comply by the return date. Rather, on January 3, 2014, it filed a petition to revoke the subpoena.
On January 6, 2014, the Board issued and served a second subpoena duces tecum, B-712366.
On January 14, 2014, Vista filed a petition to revoke the subpoena.
On February 27, 2014, the Board denied Vista's petition to revoke the first subpoena,
Vista alleges that on October 17, 2013, the SEIU filed a petition for union certification with the NLRB, seeking to unionize its employees.
Vista alleges that the union then filed fifteen charges against it with the NLRB. It contends the charges are based on "frivolous allegations questioning Plaintiff's long established business practices and company policies,"
A Rule 12(b)(1) motion tests whether the court has subject matter jurisdiction to hear the claims alleged in the complaint. Such a motion may be "facial" or "factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Stated differently, a party mounting a Rule 12(b)(1) challenge to the court's jurisdiction may do so either on the face of the pleadings or by presenting extrinsic evidence for the court's consideration. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000); Thornhill Publ'g Co. v. Gen. Tel. & Elecs., 594 F.2d 730, 733 (9th Cir.1979).
As a general matter, "[i]n a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of ... allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone, 373 F.3d at 1039. Whatever the nature of the challenge, the party seeking to sue in federal court bears the burden of establishing that the court has subject matter jurisdiction to hear the action. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Association of American Medical Colleges v. United States, 217 F.3d 770, 778-79 (9th Cir.2000); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989).
The NLRB's jurisdictional attack is facial: for purposes of its Rule 12(b)(1) motion, the Board does not dispute the truth of the facts alleged in the complaint. Rather, it argues that the court lacks jurisdiction to adjudicate cases attacking the validity of subpoenas duces tecum. Although the NLRB has filed the declaration of its counsel and four exhibits supporting its motion to dismiss,
The party invoking federal jurisdiction — here, Vista — bears the burden of establishing the existence of subject matter jurisdiction. See Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001); Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). At the pleading stage, this burden is satisfied by alleging facts that show a proper basis for jurisdiction. Fed.R.Civ.Proc. 8(a)(1) (a complaint "shall contain a short and plain statement of the grounds upon which the court's jurisdiction depends"); see McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ("The prerequisites to the exercise of jurisdiction are specifically defined and the plain import of the statute is that the District Court is vested with authority to inquire at any time whether these conditions have been met. They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction").
The complaint must show "affirmatively and distinctly the existence of whatever is essential to federal jurisdiction, and if [it] does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir.2001). Since subject matter jurisdiction must be affirmatively alleged, courts will not infer allegations supporting the exercise of jurisdiction. See Watson v. Chessman, 362 F.Supp.2d 1190, 1194 (S.D.Cal.2005); see also Tosco Corp., 236 F.3d at 499; Century Southwest Cable Television, Inc. v. CIIF Assoc.'s, 33 F.3d 1068, 1071 (9th Cir.1994).
There are generally two ways in which a court can review the Board's issuance of a subpoena, neither of which are satisfied by Vista's complaint. The first is upon application of the Board, under section 11(2) of the NLRA, which provides that
In Wilmot v. Doyle, 403 F.2d 811, 812-15 (9th Cir.1968), the Ninth Circuit held that a district court had lacked jurisdiction under § 161(2) to enforce a subpoena upon the application of a company and the union against whom charges had been filed with the Board. The union had obtained the subpoena and served it on the field attorney representing the Board, seeking to require the attorney to produce material covering settlement negotiations, which the union argued would show that the Board had orally approved a settlement agreement. Id. at 813. When the attorney refused to comply with the subpoena, the union and the company filed a petition for enforcement of the subpoena in district court, which the court granted. Id. at 813-14. On appeal by the Board, the Ninth Circuit cited § 161(2) and held that "the Act provides that subp[o]enas will be enforced upon application by the Board [only] and not on application by private litigants. The courts consistently so hold." Id. at 814 (collecting cases); see also Biazevich v. Becker, 161 F.Supp. 261, 265 (S.D.Cal.1958) ("Plaintiffs are not entitled by Section 11(2) of the Act to maintain this action. That section permits district court enforcement of subp[o]enas only upon suit of the Board, and not fo a private party. If the Board declines to institute an ex rel. proceeding for the enforcement of a subp[o]ena issued at the request of a private party the propriety of this action can be reviewed under Sections 10(e) and (f) of the Act ... and such action may not be made the basis for a private suit for injunction in the federal district court"). The Wilmot court went on to hold that "[t]here is sound logic to the statute[.]... If private litigants, will nilly, could petition the district court, the courts might be flooded with such applications, and neither the Board nor the courts would have any control over such filings. Such petitions as here, would be used as delaying tactics." Wilmot, 403 F.2d at 814. Vista, not the Board, filed the complaint in this matter. Accordingly, the court lacks jurisdiction over Vista's complaint under § 161(2) because the action was not brought by the Board.
The second manner in which a court can review the validity of a subpoena is upon an aggrieved party's appeal of the Board's final order. See Wilmot, 403 F.2d at 814 (noting that private litigants could seek judicial review of the Board's refusal to enforce a subpoena "on either a petition to enforce or set aside the Board's final order under Sections 10(e) and 10(f) of the Act"). The NLRA provides that any person aggrieved by a final order of the Board in response to an unfair labor practice complaint may petition the court of appeals for review of that order. 29 U.S.C. § 160(f).
In the absence of a final order or the Board's application to enforce a subpoena, a party may only obtain review of a Board's denial of a petition to revoke a subpoena — or of any other order of the Board that is not the final order — if the case "comes within the narrow exception to this rule of non-reviewability." Id. at 79; see also N.L.R.B. v. California Horse Racing Board, 940 F.2d 536, 540 (9th Cir. 1991) ("The Supreme Court has permitted only the narrowest of exceptions to the statutory scheme permitting review only of final Board orders by the courts of appeals"). The "narrow exception to th[e] rule of non-reviewability" was created by the Supreme Court in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). There, the court held that the district court had subject matter jurisdiction to review the Board's certification of a bargaining unit in a representation action because plaintiff claimed that the Board acted "in excess of its delegated powers and contrary to a specific prohibition in the Act." Id. at 188, 79 S.Ct. 180. "Th[e] court held that sections 10(e) and (f) did not apply because the suit was not one to `review ... a decision of the Board made within its jurisdiction,'" but was, rather, a challenge to Board action alleged to have been in excess of the Board's powers. California Horse Racing, 940 F.2d at 540 (citing Leedom, 358 U.S. at 188, 79 S.Ct. 180). The Leedom court created the exception in part because plaintiff would not have been able to obtain meaningful relief had the action not been allowed to proceed. 358 U.S. at 185, 79 S.Ct. 180. See also Amerco v. N.L.R.B., 458 F.3d 883, 889 (9th Cir.2006) (Leedom "held that the district court has jurisdiction to enter injunctive relief against certain representation decisions when a party's statutory or constitutional rights otherwise might never be vindicated.... We recognize the necessity of providing a forum for the vindication of statutory and constitutional rights, but ... the Leedom ... exception[] do[es] not apply outside the context of Section 9 actions or other situations in which meaningful judicial review is unavailable").
To assert jurisdiction under Leedom, a "plaintiff must show, first, that the agency has acted `in excess of its delegated powers and contrary to a specific prohibition' which `is clear and mandatory,' and, second, that barring review by the district court `would wholly deprive [the party] of
Vista concedes that "the District Court does not have jurisdiction over NLRB subpoenas unless the Application for Enforcement is filed by the Board."
In support of its argument that the NLRB has waived its right to assert a lack of jurisdiction in this case, Vista cites N.L.R.B. v. Cable Car Advertisers, Inc., 319 F.Supp.2d 991, 996 (2004).
The court cannot agree with the reasoning of the Cable Car court. Federal courts are courts of limited jurisdiction and may only hear cases they have been authorized to hear by the Constitution and Congress. A party cannot waive a lack of subject matter jurisdiction. See, e.g., Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ("Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto. For that reason, every federal [] court has a special obligation to `satisfy itself ... of its [] jurisdiction ...' even though the parties are prepared to concede it"); Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir.2002) ("Challenges to subject matter jurisdiction cannot be waived and may be raised at any point in the proceeding"); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983) ("The defense of lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction"); GMAC
Nor does the court find convincing Vista's allegation that there is jurisdiction under § 1337. As noted, that section vests district courts with jurisdiction over proceedings arising under any act regulating commerce. See 28 U.S.C. § 1337(a). The Ninth Circuit and other circuits have held that a plaintiff cannot invoke § 1337 as a way of circumventing congressionally created methods of securing judicial review of agency action. As a result, they have concluded that, unless the Leedom exception is satisfied, a court does not have jurisdiction under § 1337 to hear a claim asserted by a plaintiff seeking review of an otherwise unreviewable agency order.
In Wilmot, 403 F.2d at 816, for example, the Ninth Circuit held that a district court lacked jurisdiction under § 1337 to hear the claim of appellees who had filed an action to enforce a subpoena duces tecum because "[t]here [was] no showing that the remedy of petition by the Board to enforce a subp[o]ena and the remedy of review of alleged errors on a petition to enforce or set aside a final order by the Board [were] not adequate." The court concluded that "[a]ppellees [could] not circumvent the procedure set up in Sec[tion] 11(2) of the Act, (29 U.S.C. § 161(2)) and Sec[tion] 10(e) and (f) of the Act (29 U.S.C. § 160(e) and (f)) by resorting to an independent suit in equity under 28 U.S.C. § 1337." Id.
Similarly, in General Finance Corp. v. Federal Trade Commission, 700 F.2d 366, 368 (7th Cir.1983), the Seventh Circuit held that a plaintiff "may not bypass the specific method that Congress has provided for reviewing adverse agency action simply by suing the agency in federal district court under [§]1331 or [§]1337; the specific statutory method, if adequate, is exclusive." In General Finance, three consumer loan companies sued the Federal Trade Commission ("FTC"), seeking a declaratory judgment and an injunction preventing the FTC from investigating their insurance activities. The Seventh Circuit held that the district court lacked jurisdiction to hear the case, because "the target of a[n] [agency] investigation may not maintain a suit under sections 1331 or 1337 to enjoin the investigation but must wait [un]til[] the government sues to enforce a subpoena or other compulsory process in aid of the investigation, since that is the method of judicial review of FTC investigations that Congress has prescribed." Id.
In Mobil Exploration & Producing U.S., Inc. v. Department of Interior, 180 F.3d 1192, 1200 (10th Cir.1999), the Tenth
Wilmot, General Finance, and Mobil make clear that the court does not have jurisdiction under § 1337 to hear Vista's complaint. Vista does not satisfy the Leedom exception because it can obtain meaningful judicial review of its objections to the Board's subpoenas by refusing to comply with the subpoenas, thereby compelling the Board to file an enforcement action. It can then raise its objection as defenses to that action and obtain a judicial resolution of the issue. Both of these steps have occurred here. Because Vista can raise all of its arguments concerning the validity and scope of the subpoenas in its opposition to the NLRB's application, Vista cannot satisfy the Leedom exception. The court therefore lacks jurisdiction under § 1337 to adjudicate the claims in Vista's affirmative action against the Board, and Vista's complaint must be dismissed.
Because the question of its jurisdiction to hear the case is a pure question of law, the court concludes that allowing Vista to amend its complaint would be futile, It therefore dismisses the action with prejudice.
The court next considers the merits of the NLRB's application to enforce the subpoenas.
"The scope of [a district court's] inquiry in an agency subpoena enforcement
To demonstrate that an inquiry is unduly burdensome, an "employer must show that compliance would unduly disrupt and seriously hinder normal operations of the business." E.E.O.C. v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir.1993). "[T]he burden on a party seeking to dodge compliance with a subpoena `is not a meager one.' Such a party must come forward with facts suggesting that the subpoena is intended solely to serve purposes outside the purview of the jurisdiction of the issuing agency. `If the party seeking to quash the subpoena does not satisfy these threshold requirements, a district court should, in a § 11(2) enforcement case, act summarily.'" N.L.R.B. v. Frazier, 966 F.2d 812, 819 (3d Cir.1992) (citing N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 112 (3d Cir.1979)).
The Ninth Circuit in North Bay recognized that "Congress has granted the Board the power to investigate." 102 F.3d at 1007. Specifically, the NLRA provides that "[t]he Board ... shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The [NLRA also provides that the] Board... shall upon application of any party to such proceedings, forthwith issue to such party subp[o]enas requiring the attendance and testimony of witnesses or the production of any evidence in such proceedings or investigation requested in such application." 29 U.S.C. § 161(1). A party on whom the subpoena is served may, within five days of being served, "petition the Board to revoke, and the Board shall revoke, such subp[o]ena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subp[o]ena does not describe with sufficient particularity the evidence whose production is required." Id. In North Bay, the Ninth Circuit held that the language of § 161(1) was "clear. The Board may issue subpoenas requiring both the production of evidence and testimony during the investigatory stages of an unfair labor practices
Vista argues that the "local NLRB not only has no interest in protecting the employees' privacy rights but it is willing to allow illegal practices done by the union."
With respect to procedural requirements, the North Bay court held that "[t]he Board has properly promulgated procedures regarding [administrative] subpoenas." Id. Relevant here, 29 C.F.R. § 102.113(c) provides that "[s]ubpoenas shall be served upon the recipient either personally or by registered or certified
The NLRB complied with these procedures: the Board served the two subpoenas on Vista by certified mail and sent a copy to Flores-Burt via regular mail as well.
As the court has noted, the Board states that the items requested in the first subpoena are designed to aid it in determining whether it has, and should exercise, jurisdiction over Vista. "The Board is empowered to prevent the commission of unfair labor practices by `any persons ... affecting commerce.'" Volunteers of America, Los Angeles v. N.L.R.B., 777 F.2d 1386, 1388 (9th Cir.1985) (citing 29 U.S.C. § 160(a)). Section 160(a) "is intended to give the Board the broadest jurisdiction possible under the commerce clause." Id. Congress "left it to the Board to ascertain whether proscribed practices would in particular situations adversely affect commerce when judged by the full reach of the constitutional power of Congress." Polish National Alliance of the United States v. N.L.R.B., 322 U.S. 643, 648, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944). "Even when the effect of activities on interstate commerce is sufficient to enable the Board to take jurisdiction of a complaint, the Board sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in th[e] case." N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 684, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).
The Board's first subpoena sought (1) Vista's articles of incorporation; (2) the names of all of its officers and directors; (3) Vista's stock subscription books and other records reflecting the identity of its shareholders; and (4) financial statements and other accounting documents showing the value of goods and services Vista has purchased from sources located within and outside the state of California, as well as the value of goods and services Vista has provided to persons located outside California. In response, Vista provided its Statement of Information, which it contends satisfied the first two categories of documents sought by the subpoena. Although the statement provides the name of Vista's sole officer and director, thereby satisfying item 2, it does not include Vista's articles of incorporation. It therefore appears that Vista failed to provide information responsive to categories 1, 3, and 4.
Vista argues that any need to respond to the first subpoena is moot because Vista
Vista does not object to providing its articles of incorporation, and the articles may contain information that is relevant in assessing whether and how Vista engages in interstate commerce; specifically, the articles may the location of Vista's principal place of business or contain an overview of the type of business in which it is engaged. The court therefore finds that the articles of incorporation are relevant and material to the Board's determination of jurisdiction.
Vista objects to item 3 — which seeks production of its stock subscription books — on the basis that this information is not reasonably calculated to lead to the discovery of admissible evidence.
Vista next argues that because it resubmitted the commerce questionnaire, which it completed to the best of its ability, and which includes information as to whether it is engaged in interstate commerce, category 4 — which seeks for documents showing the value of goods and services Vista purchased and provided to sources within and outside California — is moot.
Vista responded "no" to questions that asked whether its gross revenue from the provision of services to customers outside California exceeded $50,000, whether its gross purchases of materials or services outside California exceeded $50,000, whether gross revenue from the provision of services to firms that make sales directly to customers outside the state exceeded $50,000, and whether its gross revenue from the provision of services to public utilities, transit systems, newspapers, health care institutions, broadcasting stations, commercial buildings, educational institutions and/or retail concerns exceeded $50,000. It specified that the revenue under $50,000 it had received in each of these categories was "None." It answered "unknown" when asked whether its gross purchases from firms that, in turn, had purchased goods outside the state exceeded $50,000.
Accounting records that document Vista's purchases from vendors is relevant in assessing whether the Board should exercise jurisdiction over Vista; once Vista identifies the vendors from which it purchases, the Board can investigate whether those vendors are engaged in interstate commerce. The amount Vista purchases from these vendors is also relevant because it will help the NLRB determine whether, if these vendors do engage in interstate commerce, it is appropriate to exercise jurisdiction over Vista. Vista, moreover, has cited no authority for the proposition that because it completed the commerce questionnaire, the NLRB cannot seek documents designed to provide and/or verify the information set forth on the form. Vista does not dispute that the documents in category 4 would provide information relevant in assessing whether its activities affect interstate commerce; the court finds that they would because they would provide information relevant to that question.
The NLRB contends that the items sought by the second subpoena are designed to aid its investigation of the substantive merits of the SEIU's charges against Vista.
Vista objects to all of these categories of documents on the basis that it has provided sufficient documents showing that its employees' involvement with the SEIU was not the but-for cause of any of the actions that form the basis of the SEIU's charges.
An employer that had a legitimate business reason for its conduct cannot be held liable for violating the NLRA. See, e.g., Retlaw Broadcasting Co. v. N.L.R.B., 53 F.3d 1002, 1006 (9th Cir.1995) ("An independent violation of § 8(a)(1) `is established by showing: (1) that employees are engaged in protected activities ...; (2) that the employer's conduct tends to interfere with, restrain, or coerce employees in those activities ...; and (3) that the employer's conduct is not justified by a legitimate and substantial business reason," citing Fun Striders, Inc. v. N.L.R.B., 686 F.2d 659, 661-62 (9th Cir.1981) (internal alterations original)). Vista's argument is premature, however, for it is well established that "a party may not defeat agency authority to investigate with a claim that could be a defense if the agency subsequently decides to bring an action against it." E.E.O.C. v. Federal Express Corp., 558 F.3d 842, 848 (9th Cir.2009) (citing E.E.O.C. v. Children's Hospital Medical Center of Northern California, 719 F.2d 1426, 1430 (1983)).
Categories 1 through 5 seek (1) documents reflecting written workplace attendance and tardiness policies, documents reflecting that the policies were communicated and/or distributed to employees, (2) and (3) documents reflecting employee's acknowledgment and receipt of employee handbooks, (4) time records for a specific group of eleven employees, and (5) documents reflecting all warnings, discipline, and discharges for violations of the attendance and tardiness policies. The subpoena seeks all documents responsive to these categories for the period from October 31, 2011 to the present.
Vista first argues that it has already provided its November 1, 2011 employee handbook and thus that category 1 is moot. Category 1, however, requests all written workplace attendance and tardiness policies, as well as documents reflecting that the policies were communicated and/or distributed to employees from October 31, 2011 to the present. Vista does not state that the policies reflected in its November 1, 2011 employee handbook have not changed between 2011 and the present. Nor does it state that it has no other written workplace attendance and tardiness policies. Moreover, although Vista gave the NLRB minutes of three staff meetings at which its policies and practices were discussed, it does not represent that these meeting minutes and the handbook are the only documents reflecting that its attendance and tardiness policies were communicated or distributed to employees. Vista has therefore not shown that category 1 is moot.
Vista next argues that it has given the NLRB six months of time records and that category 4 is thus moot. Category 4, however,
Vista also contends that all of categories 1 through 5 are irrelevant to the charges because it did not terminate any employees for having violated the attendance and tardiness policy.
Vista also objects to the two-year time period categories 1-5 cover. As the Board argues, however, older documents are relevant to its investigation of the charge because they will reflect how long Vista has had the attendance and tardiness policy, how strictly it has enforced that policy, whether it changed its practice of allowing a grace period despite the terms of its attendance and tardiness policy on a regular or ad hoc basis prior to its employees' involvement in unionization activities, and/or whether it changed its practice after its employees began attempting to organize with the SEIU.
Items 6 through 14 seek (6) complete disciplinary records for Marta Aparicio, Delfina Sanchez, and Maria Lopez, (7) documents related to investigation of the incident that resulted in Aparicio's and Sanchez's termination, (8) documents reflecting why Jennifer Abunza and Lopez were not disciplined, (9) documents reflecting whether Lopez is currently employed by Vista, (10) if Lopez was terminated, documents reflecting the date of her discharge, (11) documents reflecting all disciplinary policies in effect from October 31, 2011 to the present, (12) documents reflecting all policies regarding sleeping at work from October 31, 2011 to the present, and documents showing that these policies were communicated and/or distributed to employees, (13) documents reflecting all warnings or other disciplinary actions taken against employees for sleeping at work from October 31, 2011 to the present, and (14) documents reflecting whether Aparicio and Sanchez were scheduled to work during October and November 2013.
Vista argues that it has already produced documents concerning the incident that led to Aparicio's and Sanchez's termination
Vista makes no argument as to why the documents requested in categories 6-14 are irrelevant or immaterial. The court determines that they are relevant. The SEIU alleges that Vista terminated Sanchez and Aparicio, who were union supporters, for sleeping on the job, but that it did not terminate other, non-union supporters who were caught sleeping by the same individual; the union also alleges that, over the years, Vista had not disciplined its employees for sleeping while on the job. Documents reflecting Vista's policy regarding sleeping at work over the past two years as well as any disciplinary action it has taken against employees for sleeping during that period are therefore relevant in determining whether Vista retaliated against Sanchez and Aparicio by terminating them for violating a policy it did not generally enforce.
Categories 15 through 21 seek (15) lay-off and/or termination notices for employees who were discharged as a result of the Pro-Clean subcontract, (16) documents reflecting communications with Pro-Clean from October 31, 2011 to the present, (17) documents reflecting the reason and/or business justification for Vista's decision to enter into the Pro-Clean contract, (18) documents reflecting all employees hired by Vista since October 14, 2013 and their job titles, (19) documents reflecting the identity of all individuals who have worked at Vista's facility pursuant to the subcontract, (20) documents reflecting whether Roman Lopes is still employed by Vista, and (21) all versions of schedules for housekeeping and maintenance staff from September through December 2013.
Vista has given the NLRB the termination notices for employees who were discharged as a result of the Pro-Clean contract, and a copy of its October 3, 2013 Service Agreement with Proclean. These items appear to respond to categories 15 and 16. There is no evidence that Vista has produced documents responsive to the other categories, however. Vista does not argue that the documents requested in categories 15 through 21 are irrelevant or immaterial. It contends rather that it entered into the subcontract with Pro-Clean to save money and that it began discussions with Pro-Clean in August 2013, months before learning that its employees were attempting to unionize in October 2013.
Finally, category 22 seeks documents reflecting the participation of certain managers in hiring, promotion, and discharge decisions. Vista argues that this request is moot because it has already given NLRB the information sought. There is nothing in the record, however, demonstrating that Vista has done so. The role of Vista's managers and their supervisory authority is relevant in establishing the management hierarchy at Vista, which in turn is relevant in determining whether a particular manager's conduct can be imputed on Vista. As the Board notes, the SEIU alleges that Esther Cuellar told an employee who was a union supporter that her upcoming vacation request was going to be denied because of her union activities, and that she made threatening statements to other employees who supported the union. The SEIU also alleges that Vida Zelaya told employees they would no longer be able to wear uniforms that were the union's colors. Under the NLRA, a "supervisor" is "any individual having the authority in the interest of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C. § 152(11). In order to determine whether Cuellar's and Zelaya's alleged conduct can be imputed to Vista, the Board must determine whether they are supervisors within the meaning of the act. Category 22 seeks documents relevant for that purpose.
For the reasons stated, the court concludes that all documents requested by the NLRB in the two subpoenas are relevant and material with the exception of category 3 in the first subpoena, B-712357, which seeks information concerning Vista's shareholders.
Because the court has found that the subpoenas seek information that is relevant and material, the court must enforce the subpoenas unless Vista shows that they are unduly burdensome or overly broad. Vista contends they are.
Vista argues the first subpoena is overbroad because it requests documents for an unspecified time period.
The court does not find the subpoena vague as to time. Category 1 seeks Vista's articles and certificate of incorporation. Vista only has one set of articles and one certificate of incorporation. Categories 2 and 3 are written in the present tense, indicating that they seek the names of Vista's current directors, officers, and shareholders. Category 4 seeks financial statements and other accounting documents that show "for the preceding 12 months or for the Employer's last fiscal year," the value and nature of goods Vista has purchased and services it has provided. This is a clear time period.
Vista's argument that the subpoena is unduly burdensome fails because it has adduced no evidence of burden; indeed, it adduced none in support of its petition to revoke the subpoena before the Board. As the court has noted, arguments in briefs are not competent evidence. Vista appreciates this, as it submitted the declarations of Flores-Burt and its Administrator, Rosa Valdivia in support of its opposition. Valdivia, however, does not address the effect complying with the subpoena would have on Vista's business. Nor does she state that responding to the first subpoena would require that the company analyze data or create documents that do not exist.
In Equal Employment Opportunity Commission v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir.1981), the Seventh Circuit faced a similar situation. There, a company opposed enforcement of an administrative subpoena on the ground that it was unduly burdensome. The court held that
Likewise, here, Vista has adduced no evidence supporting its assertion that compliance with the subpoena will require that it expend money, compile data, or produce documents that do not exist.
Even had Vista adduced evidence that it would have to pay overtime or hire temporary employees to locate and compile the records the NLRB seeks in the first subpoena, it has not shown how this fact
Contrary to Vista's implication, moreover, courts have held that an administrative subpoena may validly require a party to compile data in order to respond to it. See, e.g., Bay Shipbuilding, 668 F.2d at 313 ("The company urges too that the EEOC has no authority to require it to compile information. This hoary point has already been correctly rejected in other EEOC cases," citing New Orleans Public Service, Inc. v. Brown, 507 F.2d 160, 165 (5th Cir.1975), and Motorola v. McLain, 484 F.2d 1339, 1346 (7th Cir.1973)). Thus, even if the first subpoena required Vista to compile data, it would be enforceable. The court notes, however, that only category 2, which requests the names and addresses of Vista's directors and officers, even potentially required that Vista compile data and provide a document that does not otherwise exist. Not even this category actually required Vista to do so, however, as Vista complied with the request by producing a copy of the Statement of Information it prepared; this was a document already in existence. Category 1 seeks Vista's articles and certificate of incorporation. Category 3 seeks existing stock subscription books, stock transfer books, share registers, and other records and documents reflecting the identities of Vista's shareholders. Category 4 seeks financial statements, balance sheets, profit and loss statements, and other accounting documents that show the goods Vista purchased and the services it rendered. None of these categories requires that Vista compile information and create documents in order to respond.
For all of these reasons, Vista has failed to show that the first subpoena is overbroad or that compliance with it would be unduly burdensome. Other than the production
Vista argues that the second subpoena is overbroad because it requests information regarding employees no longer employed by the company.
The court does not agree that the second subpoena is overbroad because it requests information about employees who no longer work at the company. Nor does it find the subpoena vague as to time. As the court noted earlier, information concerning Vista's enforcement of its workplace attendance and tardiness policies over the course of two years is relevant in assessing whether it generally enforced the policies, given its "grace period" practice. Two years is likely adequate to determine the manner in which the policies were enforced, because it covers a period sufficiently in advance of the employees' efforts to unionize that the Board can determine whether Vista changed its enforcement practices after it learned that the employees were attempting to unionize. Consequently, the request is not overbroad.
Nor is the scope of the documents sought vague as to time. The plain language of the subpoena indicates that it seeks all documents created on or after October 31, 2011 that contain information responsive to the request. For example, category 2 seeks documents reflecting employees' acknowledgment and receipt of employee handbooks "[f]or the period commencing October 31, 2011 and continuing to present...."
Vista has also failed to show that compliance with the subpoena would be overly burdensome. As noted earlier, Vista has adduced no evidence of burden. It has not shown that reviewing employee files for the past two years would require an "immense review" of records or be "extremely costly." There is no evidence regarding the number of employees who work for Vista — information that would provide
Finally, Vista's argument that releasing employee records would violate its employees' rights under the Privacy Act is unpersuasive. The Privacy Act regulates agencies' disclosure of records. See 5 U.S.C. § 552a(b) ("No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains"). The act applies only to the release of information by agencies, not private individuals or corporations like Vista. See Unt v. Aerospace Corp., 765 F.2d 1440, 1447 (9th Cir.1985) (acknowledging that the Privacy Act defines agency as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency"); Shi v. Central Arizona College, No. 08-80131-RMW (HRL), 2008 WL 4001795, *1 (N.D.Cal. Aug. 27, 2008) ("[T]he Privacy Act protects individuals from government agencies disclosing personal information. Cypress is not a government agency; it is a private employer"); Bell v. Moore, CV 06-1526-PHX-SMM, 2007 WL 865313, *3 (D.Ariz. Mar. 20, 2007) (denying a motion for leave to amend to add a Privacy Act claim against a former employer because "the Privacy Act does not apply to private entities"). Because Vista is a private employer, not an agency of the federal government, the Privacy Act does not apply, and it will not violate its employees' rights under the statute by supplying the information requested.
Moreover, in North Bay, the Ninth Circuit dismissed an employer's argument that the Privacy Act applied, stating that "[t]he Privacy Act's prohibition against disclosure does not apply to information that is not retrievable by name or other individual identifier. North Bay does not contend that the Board's investigative records are maintained in such a way." 102 F.3d at 1009; see also 5 U.S.C. § 552a(a)(5) ("[T]he term `record' means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph"). Here, too, Vista does not argue that the NLRB maintains its investigative records in a manner that permits the retrieval of information by name or other individual identifier. For these reasons, the Privacy Act does not apply.
Vista has failed to show that the second subpoena is overbroad or unduly burdensome. The court therefore concludes that the subpoena is valid and enforceable, and that Vista must comply with its terms.
For the reasons stated, the court grants the NLRB's motion to dismiss Vista's complaint in Case No. CV 14-02193, and dismisses the complaint with prejudice. The court grants in part and denies in part the NLRB's application to enforce the subpoenas in Case No. CV 14-03337. Both subpoenas are valid and enforceable, with the sole exception that the Board failed to show that information concerning the identity of Vista's shareholders is relevant to its determination of jurisdiction. This aspect of the first subpoena (category 3) is therefore unenforceable. The subpoenas are enforceable in all other respects. Vista must respond to the subpoenas within twenty (20) days of the date of entry of this order.
