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National Labor Relations Board v. NPC International Inc.

United States District Court, W.D. Tennessee, Eastern Division

February 16, 2017

NATIONAL LABOR RELATIONS BOARD, Applicant,
v.
NPC INTERNATIONAL, INC., d/b/a Pizza Hut, Respondent.

         ORDER OVERRULING RESPONDENT'S OBJECTIONS TO THE MAGISTRATE JUDGE'S ORDER ON THE MOTION TO STRIKE, OVERRULING IN PART, SUSTAINING IN PART, AND HOLDING IN ABEYANCE IN PART RESPONDENT'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON THE APPLICATION TO ENFORCE SUBPOENA, AND ORDERING RESPONDENT TO PRODUCE AN AMENDED PRIVILEGE LOG

          J. DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE

         On December 17, 2013, Applicant, the National Labor Relations Board (“NLRB” or “Board”) applied to this Court for an order enforcing a subpoena duces tecum under Section 11(2) of the National Labor Relations Act (“the Act”). 29 U.S.C. §§ 151-169 (2015). (Docket Entry (“D.E.”) 1.) The subpoena is related to a pending unfair labor practice proceeding concerning Tiffney Penley. On February 4, 2014, Respondent, NPC International (“NPC”), filed a response in opposition to the enforcement application, (D.E. 12), to which the NLRB replied on February 24, 2014 (D.E. 13). Thereafter, NPC moved to strike Applicant's reply. (D.E. 14.) The motion for an order enforcing a subpoena duces tecum was referred to the magistrate judge for a report and recommendation and/or determination on December 29, 2013, (D.E. 6), and the motion to strike was referred to the magistrate judge for determination on December 29, 2015 (D.E. 23). On February 9, 2016, United States Magistrate Judge Edward G. Bryant entered an order denying NPC's motion to strike and granting the NLRB's application to enforce the subpoena and its request for attorney's fees. (D.E. 24.) NPC subsequently submitted an emergency motion to stay Judge Bryant's order, (D.E. 25), which this Court granted on February 19, 2016 (D.E. 26). NPC then filed objections to the magistrate judge's decision, (D.E. 27), which are presently before the Court for review.

         I. BACKGROUND

         The following facts were adduced from the pleadings. On March 29, 2013, Attorney Gordon E. Jackson filed a charge with the NLRB on behalf of Ashley Lewis and Tiffney Penley.

         The charge alleged that

[t]he Employer constructively and retaliatorily discharged Ashley Lewis by changing her work schedule upon learning that Lewis had filed a collective action lawsuit seeking to redress the wage claims of herself and other employees under federal wage & hour laws. The Employer further failed to properly process the workers' compensation claim of employee Tiffney Penley in retaliation for her participation in the same lawsuit and has subjected her to an unti[mely] and unwarranted investigation of alleged wrongdoing while she is on workers' compensation leave.

(D.E. 1 at PageID 7.)

         On June 20, 2013, the Board issued a subpoena duces tecum requesting that Troy Baxter, NPC Human Resource Leader, [1] appear before it on July 9, 2013, and provide the following:

1. All documents Respondent submitted to or received from the Tennessee Department of Labor and Workforce Development regarding the workers' compensation benefit claim of NPC International, Inc. employee Tiffney Penley.
2. All documents reflecting the investigation of Tiffney Penley's workers' compensation claim and all findings and determinations made during the course of the investigation.
3. All documents reflecting communications relating in any way to Tiffney Penley's workers' compensation claim.
4. All documents relating to the February 14, 2013 release by Jeffrey M. Sorenson, MD authorizing Tiffney Penley to return to work without restrictions.
5. All documents that discuss or refer to Sorenson's medical release of Tiffney Penley.

(D.E. 1 at PageID 11-15.) Paragraph ten of the subpoena directed that “if any document responsive to any request herein was withheld from production on the asserted ground that it is privileged, identify and describe the following: (a) author; (b) recipient; (c) date of the original document; (d) subject matter of the document; and (e) nature of privilege asserted.” (Id. at PageID 13-14.)

         On July 1, 2013, pursuant to NLRB regulations, NPC petitioned the Board to revoke or modify the subpoena on various grounds. (D.E. 1 at PageID 23.) Respondent asserted that the subpoena sought to “improperly enjoin [NPC's] ability to investigate or otherwise defend/prosecute Tiffney Penley's state court claim . . . .” (Id. at PageID 26.) NPC requested that the unfair labor practice charge be held in abeyance pending the outcome of the underlying workers' compensation claim, arguing that “[t]o do otherwise[] would deprive NPC of its First [A]mendment right to have state law questions decided by the state judicial system.” (Id.)

         NPC also requested revocation on the ground that the subpoena was overly broad. (D.E. 1 at PageID 27.) Respondent pointed to language in the subpoena requesting “all documents, ” which NPC contended would lead to an “exhaustive search” that was “illogical” and “contrary to the NLRB's mandates and the Federal Rules of Civil Procedure.” (Id.) Respondent averred that the subpoena “improperly [sought] the production of documents and materials that are protected under the attorney-client privilege and work product doctrine[], ” specifically requests 2-5 (Id.) Respondent did not offer any details about the documents it withheld on these bases. NPC further stated that the Board had not shown that the documents requested were relevant to any issue in dispute. (Id.) Finally, Respondent contended that request 4-records from Penley's doctor releasing her to full duty-asked for documents that were outside NPC's control. (Id.)

         On October 25, 2013, the Board denied Respondent's petition to revoke. (D.E. 1 at PageID 38.) It concluded that the subpoena sought relevant information for the matter under investigation and “describe[d] with sufficient particularity the evidence sought . . . .” (Id.) The Board noted that NPC had “failed to establish any other legal basis for revoking the subpoena.” (Id.)

         On November 12, 2013, counsel for NPC emailed Applicant's counsel and informed her that Respondent would not produce any additional documents. (D.E. 1 at PageID 40.) Thereafter, the NLRB applied to this Court seeking an order enforcing the subpoena. (Id.) Applicant requested that this Court: (1) issue an order directing NPC to show cause why an order should not issue directing compliance with the subpoena, (2) issue an order requiring Respondent to obey the subpoena duces tecum and provide the requested documents within ten days of entry ...


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