Nat'l Labor Relations Bd. v. Uber Techs., Inc.
| Decision Date | 17 October 2016 |
| Docket Number | Case No. 16–mc–80057–SK |
| Citation | 216 F.Supp.3d 1004 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Plaintiff, v. UBER TECHNOLOGIES, INC., Defendant. |
| Court | U.S. District Court — Northern District of California |
Carmen Leon, Christy Jiwon Kwon, Joseph Doolin Richardson, Jill Hawken Coffman, National Labor Relations Board, Region 20, San Francisco, CA, for Plaintiff.
Robert G. Hulteng, Lauren Elizabeth Meyerholz, Littler Mendelson, P.C., San Francisco, CA, Elizabeth Parry, Littler Mendelson, Walnut Creek, CA, for Defendant.
Regarding Docket No. 1
The National Labor Relations Board ("Board") filed an application for an order to enforce two administrative subpoenas the Board issued in connection with its investigation of charges of unfair labor practices against Respondent Uber Technologies, Inc. ("Uber"). Having carefully considered the parties' papers, relevant legal authority, and the record in the case, the Court GRANTS the application for the reasons set forth below.
Multiple Uber drivers have filed charges against Uber for violations of the National Labor Relations Act, 29 U.S.C. §§ 151, et seq. ("Act"). On September 24, 2015, Catherine London and John Billington each filed a charge in Region 20 of the Board in San Francisco, California against Uber. Both London and Billington assert that Uber violated the Act by requiring its drivers to waive their right to engage in protected concerted activity by requiring them to agree to a licensing agreement which includes an arbitration policy that includes a waiver of class and collective actions. On August 27, 2015, Mamdooh Ramzi Husein filed a charge in Region 14 of the Board in Kansas City, Missouri against Uber. Husein alleges that Uber discriminated against him for engaging in concerted activity. On September 25, 2016, Brittany Nicol filed a charge in Region 28 of the Board in Phoenix, Arizona against Uber. Nicol alleges that Uber disciplined and/or discharged her based on her protected concerted activities.1 On October 30, 2015, Abdul Mohammed filed a charge in Region 13 of the Board in Chicago, Illinois against Uber. Mohammed alleges that Uber interfered with his rights protected by Section 7 of the Act.
The central question underlying each charge is the status of each Uber driver as either an independent contractor or employee. Each of these charges under investigation by the Board would constitute a violation of the Act only if these drivers are employees of Uber, as opposed to independent contractors. Uber contends that its drivers are independent contractors. Therefore, the Board is investigating the threshold issue of whether the Uber drivers at issue are employees pursuant to Section 2(3) of the Act, 29 U.S.C. § 152, or whether they are independent contractors. To promote efficiency, the General Counsel of the Board decided to coordinate the investigations of this threshold issue in Region 20. (Dkt. 1, Ex. 8.) The Board notified Uber of this decision. (Id. )
On December 31, 2015, the Board sent two subpoenas to Uber, one requesting the production of documents and one requesting that Uber answer interrogatories. (Dkt. 1, Exs 1, 2.) Both subpoenas state that they are connected to the Board's investigation of Billington's charge, "et al." At the hearing, the Board argued that the "et al." means the related charges, which includes all of the charges pending against Uber. Uber contends that the subpoenas only concern the charges by Billington and London, and Uber asserts that it has provided the information that is relevant to these two individual drivers to the Board.
Both subpoenas include the following statement:
If you do not intend to comply with the subpoena, within 5 days (excluding Saturdays, Sundays, and holidays) after the date the subpoena is received, you must petition in writing to revoke the subpoena.... See Board's Rules and Regulations, 29 C.F.R. Section 102.31(b) () .... Failure to follow these rules may result in the loss of any ability to raise objections to the subpoena in court.
(Dkt. 1, Exs 1, 2.) It is undisputed that Uber did not submit a petition to revoke as to either of these subpoenas. However, Uber did raise concerns regarding the scope of these subpoenas through correspondence with counsel for the Board. (Dkt. 10–2 (Declaration of Robert Hulteng), ¶¶ 13–16.)2 Uber did not fully comply with the subpoenas, and, on March 2, 2016, the Board filed the instant action to enforce them.
The Board has filed this application to enforce its subpoenas. Uber opposes the subpoenas on the grounds that the requested documents and interrogatories exceed the scope of the charges filed by Billington and London. However, before the Court may addresses the scope of the subpoenas, the Court must determine the threshold issue of whether Uber waived its ability to assert objections in Court by failing to file a petition to revoke with the Board.
The Act provides that a party who receives a subpoena from the Board may petition the Board to revoke within five days of service, and that the Board shall revoke the subpoena if the evidence sought "does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpoena does not describe with sufficient particularity the evidence whose production is required." 29 U.S.C. § 161(1). The regulation relating to this statute requires a party, if he or she does not intend to comply with the subpoena, to file a petition to revoke within five days. 29 C.F.R. § 102.31(b). Pursuant to the regulation, the party shall file the petition to revoke with the regional director, and the regional director shall refer the petition to the Board for a ruling. It is undisputed that Uber did not file a petition to revoke the subpoenas. The Board argues that Uber's failure to petition for revocation precludes Uber from challenging the scope of the subpoenas in Court.
Courts "generally will not entertain a challenge to a subpoena that was not first brought before the Board." N.L.R.B. v. Fresh & Easy Neighborhood Mkt., Inc. , 805 F.3d 1155, 1159 (9th Cir. 2015) .3 The Ninth Circuit held that a respondent's failure to exhaust precluded the court from considering the respondent's merit-based challenges to the subpoena's validity. See Fresh & Easy Neighborhood Mkt. , 805 F.3d at 1162.
Courts have waived the exhaustion requirement when the challenge to a subpoena is based on constitutional grounds or there are exceptional circumstances, neither of which is present here. See Cuzzens of Ga. , 608 F.2d at 1064 (); E.E.O.C. v. Lutheran Soc. Servs., 186 F.3d 959 (D.C. Cir. 1999) ().
In Lutheran Social Services , the court found that several facts, when considered together, amounted to exceptional circumstances which warranted excusing the failure to exhaust claims of attorney-client and work-product privileges. Id. at 964–66. First, the subpoena did not advise that Lutheran had only five days to object or even point to the regulation that sets forth this requirement. Id. at 964. Instead, the subpoena merely referenced the statute which provides that a party "may" petition the agency if it objects to the subpoena on the grounds of relevance or particularity, neither of which were at issue in that case. Id. Second, the agency investigator who issued the subpoena may have inadvertently misled Lutheran into believing it had not missed any deadlines. Id. at 965. Third, Lutheran did not assert its objections for the first time in court, as it had repeatedly claimed that the document at issue was privileged. Id. In fact, the "EEOC official with whom the regulation required Lutheran to file its petition, the District Director, was aware of the nature of Lutheran's objections." Id.
Fourth, and perhaps most importantly, the court noted that excusing the exhaustion requirement would do little to undermine the integrity of the agency's procedures because the issue at stake was one of attorney-client privilege and the application of the doctrine of the attorney work product. "The basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence." Id. (quoting Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972) ). The court noted that because the agency did not have any expertise with respect to the attorney-client privilege or application of the doctrine of attorney work product, no such benefit would flow from requiring exhaustion. "[E]xpertise as to those privileges resides in the federal courts." Id. (citing Fed.R.Evid. 501 ). The court contrasted the case from the more typical situation where a subpoena recipient objects based on relevance or particularity. "In such cases, exhaustion is important because the [agency] possesses considerable expertise with respect to relevance and particularity, expertise to which we would comfortably defer." Id.4
The court also noted the important role that the attorney-client privilege and work product doctrine play in the enforcement of Title VII:
[L]acking resources to pursue every suspected violation of federal law, the government must depend on effective, conscientious...
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