Uber and NLRB File Legal Arguments Over Subpoenas

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By Lawrence E. Dubé

March 30 — Uber Technologies Inc. and the National Labor Relations Board have reached an impasse over the agency's right to subpoena documents and information in pending unfair labor practice cases, and they completed their submission of briefs March 28 asking a federal district court in California to resolve the dispute.

The on-demand ride service argues that an NLRB regional director has subpoenaed information that is beyond the scope of pending unfair labor practice charges and is irrelevant to specific claims made by individuals in the charges. Uber is asking the U.S. District Court for the Northern District of California to deny the NLRB's application for an order enforcing the subpoenas.

The NLRB has not yet determined that any of the unfair labor practice charges has merit. However, the agency contends its demands for information are proper and Uber waived any objection by failing to petition the NLRB for revocation of the subpoenas.

NLRB Investigating Several Charges

According to the NLRB's initial court filing, one driver in Missouri filed a charge in August 2015 alleging Uber fired him for discussing employment conditions via social media and attempting to organize a weekend strike by drivers .

Another driver in Arizona claimed in a September charge she was fired for NLRA-protected activity, and a Chicago-area driver made similar allegations in an October charge.

Two California-based individuals also filed NLRB charges in September, alleging that the company has violated the NLRA by requiring drivers to resolve disputes with the company through arbitration and waive the right to participate in class or collective actions related to their relationships with Uber.

The NLRB's general counsel designated the agency's Region 20 in San Francisco to coordinate the investigation of the threshold issue of independent contractor status, but the board says in its court petition that it did not receive enough information from the company to resolve the matter.

On Dec. 31, the NLRB served the company with one subpoena requiring it to present testimony responsive to interrogatories about its relationship with drivers and a second subpoena requiring it to produce documents.

The NLRB filed a brief supporting its petition for subpoena enforcement, but the company filed an opposition on March 21 arguing the subpoenas are overbroad and unenforceable.

Uber Says NLRB Conduct ‘Borders on Harassment.'

Citing NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005, 154 LRRM 2035 (9th Cir. 1996), Uber said enforcement requires a showing “(1) the subpoena is within the statutory authority of the agency; (2) the information sought is reasonably relevant and material to the inquiry; and (3) the demand is not unreasonably broad or burdensome.”

“The Subpoenas fall well short of meeting the three-pronged standard for enforcement,” the company said. The agency's insistence on obtaining the information “borders on harassment, and certainly constitutes an abuse of the judicial process,” it said.

Uber said the agency's subpoenas would require producing information relating to hundreds of thousands of current and former drivers who have used the company's ride-sharing application.

The NLRB is well aware of the company's objections to the subpoenas, and the federal district court is entitled to review the subpoenas de novo, Uber said. While the company did not file petitions to revoke the subpoenas under the procedure provided in the board's regulations, Uber contended the court “cannot delegate” subpoena review to the board.

The company urged the court to “make its own independent, objective ruling on Uber's objections to the Subpoenas.”

Board Argues Uber Waived Objections

The NLRB's March 28 reply said, “The question at issue is not the Court's authority to enforce a Board subpoena, but whether Respondent has waived its right to challenge those subpoenas on certain grounds.”

Section 11(1) of the NLRA and the board's regulations, 29 C.F.R § 102.31, provide that a petition to revoke a subpoena may be filed with the board within five days of service.

“A party that fails to exhaust its administrative remedies by filing a timely petition to revoke is barred from challenging an administrative subpoena in district court on any grounds other than constitutionality,” the NLRB said.

“By failing to petition the Board to revoke the subpoenas, respondent has denied the Board its due opportunity to apply its expertise and has burdened this Court with addressing arguments properly dealt with by the Board in the first instance,” the NLRB told the court.

The court has scheduled a May 19 hearing on the NLRB's application for subpoena enforcement.

NLRB attorneys Jill H. Coffman, Christy J. Kwon, Carmen Leon and Joseph Richardson in San Francisco represent the board. Robert Hulteng, Elizabeth Parry and Lauren Meyerholz of Littler Mendelson P.C. in San Francisco represent Uber.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of Uber's memorandum is available at http://src.bna.com/dJB and the NLRB's reply is at http://src.bna.com/dJD.