Nat'l Labor Relations Bd. v. Stations Casinos, LLC

• Decision Date: 08 November 2022
• Docket Number: 2:22-cv-00100-RFB-NJK
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioners, v. STATION CASINOS, LLC, Respondents.
• Court: U.S. District Court — District of Nevada

NATIONAL LABOR RELATIONS BOARD, Petitioners, v. STATION CASINOS, LLC, Respondents.

No. 2:22-cv-00100-RFB-NJK

United States District Court, D. Nevada

November 8, 2022

REPORT AND RECOMMENDATION

[DOCKET NO. 22]

NANCY J. KOPPE, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is the motion of Intervenor Local Joint Executive Board of Las Vegas (“LJEB”) to enforce its subpoena. Docket No. 22. Respondent Station Casinos filed a response in opposition. Docket No. 27. LJEB filed a reply. Docket No. 28. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully below, the undersigned RECOMMENDS that the motion to enforce subpoena be GRANTED.

I. BACKGROUND

This is an enforcement action stemming from an NLRB complaint. In this matter, LJEB seeks to enforce a subpoena duces tecum served on the custodian of records for Respondent. See Docket No. 22-3. That subpoena includes 97 requests for documents from numerous individuals. See id. Following related proceedings in the NLRB, LJEB now comes to this Court for an order requiring a complete production by Respondent and a certification of compliance.

II. MAGISTRATE JUDGE AUTHORITY

The authority of a magistrate judge is derived from 28 U.S.C § 636, which generally provides a magistrate judge with the authority to “hear and determine any pretrial matter” except for eight enumerated motions. 28 U.S.C § 636(b)(1)(A). The Federal Rules of Civil Procedure further indicate that a magistrate judge has the authority to resolve a matter that is “not dispositive of a party's claim or defense.” Fed.R.Civ.P. 72(a); see also Fed.R.Civ.P. 72(b) (stating conversely that a magistrate judge does not have the authority to resolve a “pretrial matter dispositive of a claim or defense”). When a matter is deemed “dispositive” in nature, a magistrate judge submits a recommendation to the assigned district judge that is subject to the district judge's de novo review. See 28 U.S.C. § 636(b)(1)(B); see also Fed.R.Civ.P. 72(b). The Ninth Circuit has recently decided that adjudicating ancillary discovery matters must be deemed “dispositive” when that matter is the only issue in the case at bar and there is not a merits-based case pending in federal court from which the document dispute arises. See CPC Patent Techs. Pty Ltd. v. Apple, Inc., 34 F.4th 801, 808 (9th Cir. 2022). Accordingly, the undersigned issues this recommendation to the assigned district judge for his de novo review.

III. STANDARDS

The inquiry in an agency subpoena enforcement proceeding is narrow. N.L.R.B. v. N. Bay Plumbing, Inc., 102 F.3d 1005, 1007 (9th Cir. 1996). That inquiry is guided by a burden-shifting analysis. The party seeking enforcement bears the initial burden of showing that (1) Congress granted the authority to investigate; (2) the procedural requirements have been followed; and (3) the evidence is relevant and material to the investigation. Id. If the party seeking enforcement establishes these requirements, then the burden shifts to the subpoenaed party to establish the inquiry is unreasonable because it is overbroad or unduly burdensome. Id.

IV. ANALYSIS

Through the instant dispute, LJEB seeks an order requiring compliance with its subpoena Requests Nos. 2-81. See, e.g., Docket No. 22-4. The undersigned will address the pertinent considerations with respect to these requests below.^[1]

A. Congressional Authority

The NLRB may issue subpoenas for the production of evidence during the investigatory phase of an unfair labor practice proceeding upon the application of any party to such proceedings. See 29 U.S.C. § 161(1); see also North Bay Plumbing, 102 F.3d at 1008. The LJEB is a party to the underlying administrative proceeding, so it was statutorily authorized to apply for and receive the subject subpoena.^[2]

B. Procedural Requirements

The NLRB has promulgated procedures regarding administrative subpoenas, including those addressing service requirements. See Vista Del Sol Health Services, 40 F.Supp.3d at 125758. The undersigned finds that the LJEB complied with these procedures, having served the subpoena upon Respondent at its principal business on June 25, 2021. Docket No. 22-1 at ¶ 2.

C. Relevance

The undersigned also finds that the LJEB has shown that the documents responsive to these requests are relevant and material to the NLRB investigation. The United States Supreme Court has observed in other administrative contexts that relevance is “not especially constraining” and should be construed generously to afford the administrative body “access to virtually any material that might cast light on the allegations” at issue. E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (addressing relevancy requirement in the context of Title VII). An NLRB subpoena may be enforced if it “relates to any matter under investigation or in question.” 29 U.S.C. § 161(1). In this context, “relevance is broadly interpreted, with courts concluding information sought in an administrative subpoena need only be ‘reasonably relevant.' In defining relevance, courts generally defer to the agency's appraisal of relevancy, which must be accepted so long as it is not obviously wrong.” N.L.R.B. v. Kava Holdings, Inc., 2017 WL 3841780, at *3 (C.D. Cal. Aug. 8, 2017), adopted, 2017 WL 3841797 (C.D. Cal. Aug. 31, 2017).

Before analyzing the relevance of the requests at issue, the undersigned will address LJEB's argument that Respondent failed to exhaust a relevance objection within the administrative proceeding for the lion's share of requests. See Docket No. 22 at 11-12.^[3] The Ninth Circuit has held that there is an exhaustion requirement for relevance objections. N.L.R.B. v. Fresh & Easy Neighborhood Mkt., Inc., 805 F.3d 1155, 1163-64 (9th Cir. 2015). Respondent failed to address this exhaustion argument in its responsive brief here, so the undersigned agrees with LJEB that any relevancy objection has been waived to the extent not asserted in the NLRB proceedings. See, e.g., Ferris v. Wynn Resorts Ltd., 462 F.Supp.3d 1101, 1121 (D. Nev. 2020) (failure to respond to an argument raised in a motion constitutes consent to the granting of that portion of the motion).

Moreover, and at any rate, the undersigned also agrees with LJEB that the requests in dispute are all relevant. The complaint in the NLRB proceedings alleges that Respondent discriminated against employees regarding their hire, tenure and other terms and conditions of employment through a company-wide scheme to use the COVID-19 pandemic to undermine support for the union. See, e.g., Docket No. 1-4 at 79-80. The complaint also alleges that Respondent advanced that scheme by selectively laying off, recalling, transferring, and rehiring employees to manipulate the composition of its workforce based on union support. See, e.g., id. at 81-87. The complaint also alleges that Respondent unlawfully assisted employees to sign petitions against continued representation by LJEB at Palace Station Casino and Boulder Station Casino, and, on the basis of those petitions, withdrew recognition from LJEB as bargaining agent at those properties. See, e.g., id. at 61-62. The complaint also alleges that Respondent failed to bargain with LJEB regarding various conditions of employment, including safety and layoff issues stemming from the pandemic. See, e.g., id. at 81-82.

The undersigned agrees with LJEB that the subpoenaed documents are relevant to these allegations. Request Nos. 2-15 seek documents related to furloughs and layoffs. Such information is relevant to the closure decisions and their timing, the effectuation of the decision to stop operations, and whether Respondent manipulated furloughs and layoffs for ulterior purposes.^[4] Request Nos. 16-29 seek documents regarding employee recalls. Id. at 10-11. Such information is relevant to whether Respondent manipulated its employee complement by selectively recalling, rehiring, and reinstating employees.

Request Nos. 30-37 seek documents regarding employee transfers. Id. at11. Such information is relevant to whether Respondent used discriminatory criteria in its transfer decisions.

Request Nos. 38-42 seek documents regarding employee hiring and rehiring. Id. at 12-13. Such information is relevant to whether Respondent selectively rehired employees based on their union sentiment and whether Respondent failed to negotiate regarding rehiring.

Request Nos. 53 and 54 seek documents regarding Respondent's reduction-in-force policies. Id. at 13-14. Such information is relevant to whether Respondent has applied its policies consistently.

Request Nos. 55-71 seek documents regarding unionization efforts. Id. at 14-16. Such information is relevant to Respondent's alleged union animus, alleged discriminatory employment decisions, alleged decertification efforts, and withdrawal of recognition of LJEB.

Request Nos. 72-79 seek documents regarding Fabiola Marni's employment. See id. at 16. Such information is relevant to the allegations that Respondent acted through Marni to solicit decertification of LJEB and that it provided improper aid to that effort.

Request No. 80 seeks documents related to awards given to Jose Gonzalez. Id. at 17. Such information is relevant to the allegations that Respondent acted through Gonzalez to solicit decertification of LJEB and that it provided improper aid to that effort.

Request No. 81 seeks documents related to awards given to Maria Sanchez. Id. Such information is relevant to the allegations that Respondent rewarded Sanchez for making unlawful promises of benefits.

In short, all of the subpoena requests at issue are relevant to allegations constituting the foundation of the NLRB proceedings.

D. Overbreadth or Undue Burden

LJEB having...