Ozark Automotive Distributors, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2012 Decided February 10, 2015

No. 11-1320

OZARK AUTOMOTIVE DISTRIBUTORS, INC., DOING BUSINESS AS

O'REILLY AUTO PARTS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 11-1352

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

Jonathan A. Siegel argued the cause for petitioner. With

him on the brief was Joseph E. Schuler.

Milakshmi V. Rajapakse, Attorney, National Labor

Relations Board, argued the cause for respondent. With her on

the brief were John H. Ferguson, Associate General Counsel,

Linda Dreeben, Deputy Associate General Counsel, and Robert

J. Englehart, Supervisory Attorney. Michelle M. Devitt, Trial

Attorney, entered an appearance.

2

Before: TATEL, Circuit Judge, and WILLIAMS and

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: This is a refusal-to-

bargain case. The company contested the union’s certification,

after an election, as the bargaining representative of company

employees. The National Labor Relations Board ordered the

company to bargain with the union. The company petitioned for

judicial review. The Board cross-petitioned for enforcement.

The main issues are whether, during a hearing on the validity of

the election, the hearing officer erred in revoking the company’s

subpoenas duces tecum, and if so, whether the error prejudiced

the company.

After we heard oral argument we noticed that one of the

Board Members on this case—Craig Becker—was a recess

appointee. We therefore ordered the case held in abeyance

pending the Supreme Court’s review of Noel Canning v. NLRB,

705 F.3d 490 (D.C. Cir. 2013), cert. granted, 133 S. Ct. 2861

(2013). The Supreme Court issued its decision at the end of

June 2014. NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). On

November 7, 2014, another panel of our court decided that

Becker’s appointment did not violate the Recess Appointments

Clause of the Constitution. Mathew Enterprise, Inc. v. NLRB,

771 F.3d 812 (D.C. Cir. 2014). On December 8, 2014, we

therefore issued an order placing this case back on the calendar.

Order Granting Mot. to Lift Abeyance, Ozark Auto. Distribs.,

Inc. v. NLRB, No. 11-1320 (D.C. Cir. Dec. 8, 2014).

I.

The company—Ozark Automotive Distributors, Inc., doing

3

business as O’Reilly Auto Parts—is a retail distributor of

automotive parts. On July 15, 2010, the Teamsters, Chauffeurs,

Warehousemen, Industrial, and Allied Workers of America,

Local 166, International Brotherhood of Teamsters, filed a

petition with the Board to represent the “full-time and regular

part-time route drivers” at the company’s distribution center in

Moreno Valley, California. The election took place on August

13, 2010. Of the thirty-two drivers eligible to vote, seventeen

voted in favor of the union, fourteen voted against it, and one

ballot was declared void.

The company filed objections, alleging that agents of the

union engaged in threats, harassment, coercion, and appeals to

racial prejudice, all of which interfered with employee free

choice, so much so that it made “a fair election impossible.”

The objections were serious, not only because of their content,

but also because the election was so close. The switch of two

votes would have changed the outcome. After reviewing the

company’s objections and its supporting evidence, the Board’s

regional director ordered an evidentiary hearing to determine the

validity of the company’s charges.

Before the hearing began, the company served subpoenas

duces tecum on the union and on Oscar Castillo, an employee

the company alleged had been acting as a union agent. The

subpoena to the union sought documents relating to the

company, to its employees eligible to vote, and to each of

several named employees “serving, acting or functioning as an

agent, official, representative or steward of the Union.” The

subpoena to the union also sought information about

communications between the union, including its representative

Ruben Luna, and the company’s employees, and between those

4

employees the company alleged were acting as union

agents—Oscar Castillo, Manuel Reyes, and Robert Castilleja.1

The company’s subpoena to Castillo sought telephone

records and other documents relating to calls between Castillo

and the union, and between Castillo and other employees

eligible to vote in the election. (The relevant portions of both

subpoenas are contained in an addendum.)

The union filed an objection to a portion of the subpoena,2

arguing that the “objected-to Requests are so vague and

overbroad as to implicate information that is protected by the

attorney-client and attorney work-product privileges.” “The

objected-to Requests,” the union continued, “do not describe

with any particularity the evidence whose production is

required, and seek documents which clearly do not relate to the

discrete issues framed in this case.” At the hearing,

Castillo—who was represented by the union’s attorney—made

an oral motion that the subpoena served on him should be

revoked for the same reasons.

The hearing officer told the parties that she would not rule

on the subpoenas until after she heard more evidence. Her

reasoning was that the company might “get some of the

evidence through testimony,” and “[i]f not,” she would “revisit

1

Although not mentioned in this subpoena, the company also

alleged that Adrian Garcia was acting as a union agent.

2

The union did not object to the company’s requests for

documents relating to communications between the union and

employees Castilleja, Reyes, and Castillo when “serving, acting or

functioning as an agent” of the union (requests 1–3) and for all other

documents relating to these employees in their capacity as union

agents (requests 7–9). The union responded that no such documents

exist.

5

this before the hearing closes.” The company objected on the

ground that deferring the ruling prejudiced its case. In response

to the hearing officer’s comment that the subpoenas requested

documents from dates outside the “critical period” (the time

between the filing of the representation petition and the

election), the company offered to narrow the scope of the

requests to the critical period. But the hearing officer repeated

that she would postpone her decision about the subpoenas until

the end of the hearing.

At the close of testimony, the hearing officer granted the

union’s and Castillo’s motions to revoke the subpoenas.

Without having examined the documents the company sought,

the hearing officer expressed concern about the employees’

confidentiality interests and the need to protect their right to

engage in union activity (their Section 7 rights).3 The hearing

officer also questioned the relevance of some of the requests.

She declined to narrow the scope of the subpoenas, explaining

that she would not require the union or Castillo to produce any

documents because of her “concern with possible Section 7

activity by employees.”

The hearing officer recommended that the Board overrule

the company’s objections and certify the union. Although

Castillo, Reyes, Castilleja, and Garcia “were the group of

employees whose purpose was to organize employees in support

of the” union, she found that they were not acting as union

agents. As we explain later, the question therefore became

3

Section 7 of the National Labor Relations Act provides:

“Employees shall have the right to self-organization, to form, join, or

assist labor organizations, to bargain collectively through

representatives of their own choosing, and to engage in other

concerted activities for the purpose of collective bargaining or other

mutual aid or protection, and shall also have the right to refrain from

any or all of such activities . . ..” 29 U.S.C. § 157.

6

whether the activities of these employees, acting independently

of the union, had made “a free election impossible,” as the

company had alleged in the alternative. On that score, the

hearing officer found against the company.

The company filed exceptions to the hearing officer’s report

and to her rulings on the subpoenas, including her decision to

defer ruling until the close of testimony.4 With respect to the

subpoenas, the company argued that its case “was severely

restricted since it was not afforded the opportunity to obtain and

review the documents and information responsive to the

subpoena[s] in a timely manner and use them in its case in chief,

in cross examination of the Union’s witnesses, or in rebuttal.”

On appeal, the Board adopted the hearing officer’s findings and

recommendations and certified the union as the employees’

collective-bargaining representative. Ozark Auto. Distribs., Inc.,

Case 21-RC-21222 (Mar. 31, 2011), 2011 WL 1210976

(N.L.R.B.). Member Hayes dissented. In his view, the hearing

officer “failed to apply the correct test in revoking the

subpoenas” because she improperly focused only on the

employees’ confidentiality interests and did not consider the

employer’s countervailing interests. Id. at 2 n.2. (Member

Hayes did not discuss other issues in the case.)

Unable to seek direct review of the Board’s certification

decision, see Boire v. Greyhound Corp., 376 U.S. 473, 476–80

(1964), the company refused to provide information the union

later requested in preparation for collective bargaining, and it

refused to bargain with the union. The union filed an unfair

labor practice charge against the company, and the Board’s

acting general counsel issued a complaint alleging that the

4

Before the hearing officer issued her report, the company filed

a request for “special permission” to appeal the hearing officer’s

rulings on the subpoenas. The Board’s regional director denied the

request.

7

company had violated § 8(a)(1) and § 8(a)(5) of the National

Labor Relations Act, 29 U.S.C. § 158(a)(1), (5), by refusing the

union’s requests to bargain and to furnish information. The

company admitted its refusal to bargain and its refusal to furnish

information to the union, but it challenged the validity of the

union’s certification, claiming that the hearing officer erred in

revoking the subpoenas. Ozark Auto. Distribs., Inc., 357

N.L.R.B. No. 88, at 1 & n.2 (Sept. 8, 2011). The Board noted

that the representation issues the company raised were (or could

have been) litigated in the prior representation proceeding and

that the company had not presented any special circumstances

requiring the Board to reexamine its decision to certify the

union. Id. The Board therefore concluded that the company’s

refusal to bargain and to furnish requested information violated

the Act. Id. at 2.

II.

The company mounts several arguments against the Board’s

certification of the union. We address only the company’s

contention that the hearing officer’s decision to quash the

subpoenas, and the Board’s approval of that decision,

constituted error. The company’s opening brief also argued that

the error was prejudicial for the reasons we will discuss below.

In the hearing under § 9(c) of the Act, 29 U.S.C. § 159(c),

the company’s principal objection was that in the days leading

up to the election, union supporters engaged in misconduct and

that four employees—Castillo, Reyes, Castilleja, and

Garcia—acted as agents of the union.5

5

The company presented evidence that, among other things, the

union supporters threatened other employees that if they did not vote

for the union and the union nevertheless won the election, the union

would not help them; that the union would get the company to fire the

union non-supporters; and that “everyone should vote for the union

8

Board law draws a distinction between the actions of a

union and its agents and the independent actions of company

employees. See Overnite Transp. Co. v. NLRB, 140 F.3d 259,

264–65 (D.C. Cir. 1998). When a union engages in misconduct

and wins the election, the Board overturns the election if “an

environment of tension and coercion” probably affected the

outcome. Id. (internal quotation marks and citation omitted).

But if the misconduct cannot be attributed to the union, the

standard for setting aside an election is more difficult for the

employer to meet. In that circumstance, the misconduct of

employees, acting independently, must be “so aggravated as to

create a general atmosphere of fear and reprisal rendering a free

election impossible.” Id. at 265 (internal quotation marks and

citation omitted).

For the company to lay employee misconduct at the union’s

feet, it did not have to prove that the union expressly authorized

the employees’ activities. Id. at 265. It would have been

enough if the union supporters had “apparent authority” to act

for the union. Overnite Transportation explained that there

would be “apparent authority” when the union engaged in

conduct that “‘reasonably interpreted, causes the third person to

believe that the principal consents to have the act done on his

behalf by the person purporting to act for him.’ For there to be

apparent authority, however, the third party must not only

believe that the individual acts on behalf of the principal but, in

addition, ‘either the principal must intend to cause the third

person to believe that the agent is authorized to act for him, or

he should realize that his conduct is likely to create such

belief.’” Overnite Transp., 140 F.3d at 266 (quoting

RESTATEMENT (SECOND) OF AGENCY § 27 & cmt. a (1992)).

See, e.g., NLRB v. Kentucky Tennessee Clay Co., 295 F.3d 436,

443–45 (4th Cir. 2002); Bio-Med. of Puerto Rico, 269 N.L.R.B.

because if [they] did not [they] would all lose [their] jobs.”

9

827, 828 (1984); Local 3, Int’l Bhd. of Elect. Workers

(Cablevision), 312 N.L.R.B. 487, 490–91 (1993).

The company’s subpoenas sought information bearing on

the question whether several of its employees who supported the

union had actual or apparent authority to act on the union’s

behalf. The Board, “assuming the information sought in the

Employer’s subpoenas ha[d] some relevance to the Employer’s

case,” upheld the hearing officer’s decision to revoke the two

subpoenas on the ground that there “ha[d] been no showing that

the Employer’s need for [the requested] information was

paramount to the employees’ confidentiality interests protected

by [Section] 7 of the Act.” Ozark Auto. Distribs., Case 21-RC-

21222, at 2 n.2., 2011 WL 1210976 (N.L.R.B.). In the absence

of such a showing, the hearing officer “correctly protected the

employees’ interests in keeping confidential their

communication with a union, an important aspect of the

employees’ ‘engage[ment] in organizing.’” Id. (quoting Nat’l

Tel. Directory Corp., 319 N.L.R.B. 420, 420–21 (1995))

(alteration in original).

The Board’s reasoning is flawed. As Member Hayes

pointed out in dissent, the hearing officer never even attempted

to balance those employee interests against the company’s need

for the documents. Id. And there is no indication in the record

that the Board did so either.

Had the Board undertaken the task, it would have

recognized that at least some of the document requests did not

implicate any employee’s confidentiality interests. The Castillo

subpoena, for example, sought records of telephone calls

between Castillo and the union, and between Castillo and other

employees eligible to vote in the election. In its requests for this

information, the company sought the date and time of each call,

but not the content of the call. We cannot see how these

10

subpoenas would impinge on the privacy of employees so much

so that the company’s need for this information would be

overwhelmed. The Board has generally sought to protect the

identities of employees who attend union meetings “because of

‘the potential chilling effect on union activity that could result

from employer knowledge of the information.’” Veritas Health

Servs., Inc. v. NLRB, 671 F.3d 1267, 1274 (D.C. Cir. 2012)

(quoting Nat’l Tel. Directory Corp., 319 N.L.R.B. at 421). But

here Castillo, whom the company alleged acted as a union agent,

testified as a union witness. At the hearing, company counsel

asked him—without objection—whether he had spoken with

anyone at the union, or made or received any calls to or from the

union, during the critical period before the election. If

Castillo—who was represented by the union’s lawyer—had no

objection to such questions, surely he could not have had any

legitimate objections to producing records of calls between him

and the union. As for records of calls between Castillo and

other employees, some employees testified that Castillo had

threatened them. Those employees would have had no objection

to their employers’ receipt of records showing that Castillo had

in fact called them.

We recognize that the Castillo subpoena requested records

of calls between Castillo and all employees eligible to vote, not

just those who testified that Castillo had threatened them. The

subpoena also sought “any and all” documents relating to any

phone calls between Castillo and the union and between Castillo

and other employees. To the extent that such a request

encompassed any “protected” information, the hearing officer

should have first attempted to reconcile the employees’

confidentiality interests with the company’s need for the

documents. There is nothing in the record to suggest that the

hearing officer tried to do this. She did not require production

of the documents for in camera review. And so she did not

know what the documents would have shown. Yet the

11

company’s need for the documents necessarily depended on

what the documents would have tended to prove. Even if the

hearing officer had a basis for concluding that the employees’

confidentiality interests outweighed the company’s need for

some of the documents, the hearing officer could have narrowed

the scope of the subpoena, rather than grant Castillo’s petition

to revoke the subpoena in its entirety. That is exactly what the

Guide for Hearing Officers suggests. See OFFICE OF THE GEN.

COUNSEL, NATIONAL LABOR RELATIONS BOARD GUIDE FOR

HEARING OFFICERS IN REPRESENTATION AND SECTION 10(K)

PROCEEDINGS 146 (Sept. 2003).6 The Guide states that when

confidentiality or other objections are raised to oppose a

subpoena duces tecum, the hearing officer should consider

receiving the material in camera and reviewing the documents

to determine whether redacting certain information or narrowing

the scope of the subpoena might cure the objection. Id. The

hearing officer did not follow that course.

Establishing that several employees were acting as union

agents was, as company counsel argued to the hearing officer,

“critical” to the company’s case. See Drukker Commc’ns, Inc.

v. NLRB, 700 F.2d 727, 731–34 (D.C. Cir. 1983) (Scalia, J.);

Ind. Hosp., Inc. v. NLRB, 10 F.3d 151, 154–55 (3d Cir. 1993)

(Alito, J.). For this reason, the hearing officer’s failure to rule

on the subpoenas until the close of the evidence exacerbated the

prejudice. A ruling against the company, rendered before the

hearing, could have alerted the company of the need to alter its

presentation, to decide whether to call additional witnesses, to

6

The Office of the General Counsel prepared the Guide “to

provide procedural and operational guidance to the Agency’s staff.”

NLRB GUIDE FOR HEARING OFFICERS preface. It “does not constitute

rulings or directives of the Board or the General Counsel, and is not

a form of authority binding on either the Board or General Counsel,”

although hearing officers are expected to follow the guidelines in the

normal course. Id.

12

seek other documents from other sources, and to reformulate

questions for cross-examination. All trial lawyers know the

danger of the unknown. The Supreme Court has said as much:

“Mutual knowledge of all the relevant facts gathered by both

parties is essential to proper litigation.” Hickman v. Taylor, 329

U.S. 495, 507 (1947). The Court wrote this about civil litigation

in federal courts. What the Court said applies as well to

evidentiary hearings before administrative bodies.

The Board argues that we should enforce its bargaining

order even if it erred in quashing the subpoenas because the

company failed to show that it suffered any prejudice. “In

administrative law, as in federal civil and criminal litigation,

there is a harmless error rule: § 706 of the Administrative

Procedure Act, 5 U.S.C. § 706, instructs reviewing courts to take

‘due account . . . of the rule of prejudicial error.’” PDK Labs.

Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C.

Cir. 2004) (quoting 5 U.S.C. § 706) (ellipses in original);7 see

also Shinseki v. Sanders, 556 U.S. 396, 406 (2009); Nat’l Assn.

of Home Builders v. Defenders of Wildlife, 551 U.S. 644,

659–660 (2007) (quoting PDK Labs., 362 F.3d at 799, when

applying the rule of prejudicial error); Canova v. NLRB, 708

F.2d 1498, 1502–03 (9th Cir. 1983); 800 River Rd. Operating

Co., LLC d/b/a Woodcrest Health Care Ctr. & 1199 SEIU,

United Healthcare Workers E., 359 N.L.R.B. No. 48 (Jan. 9,

2013) (Board applying harmless error to hearing officer’s

revocation of a subpoena).

7

Both the Supreme Court and this court have applied the APA to

judicial review of Board decisions. See, e.g., Allentown Mack Sales

& Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998); W & M Props. of

Conn., Inc v. NLRB, 514 F.3d 1341, 1348 (D.C. Cir. 2008). See

generally E.I. Du Pont De Nemours & Co. v. NLRB, 682 F.3d 65, 70

n.1 (D.C. Cir. 2012) (Randolph, J., concurring in part and concurring

in the judgment) (collecting cases).

13

The extent of the Board’s analysis consisted of an assertion

that the company failed to demonstrate “a paramount need for

the information” that overcame the “employees’ interests in

keeping confidential their communication with a union . . ..”

Ozark Auto. Distribs., Inc., Case 21-RC-21222 (Mar. 31, 2011),

2011 WL 1210976 (N.L.R.B.). Of course the company could

not have been sure what the subpoenas would have produced.

See Shaklee Corp. v. Gunnell, 748 F.2d 548, 550 (10th Cir.

1984) (“There was an erroneous denial of discovery as the

matter ultimately developed. Such a denial is ordinarily

prejudicial. It is not possible to determine here whether the

outcome would have been different had discovery been

permitted.”). The hearing officer did not conduct an in camera

review of documents responsive to the subpoenas. As a result,

the documents are not part of the administrative record available

for judicial review.

Even so, there is some indication that the union and Castillo

possessed documents within the terms of the subpoenas. The

union did not object to some of the items specified in the

company’s subpoena. For requests one to three and seven to

nine, their attorney, rather than objecting, responded that his

client had no documents. See note 2 supra. This is an

understandable strategy. Why provoke a controversy when

nothing is at stake? But the strategy also gives rise to an

inference—that the other documents requested in the two

subpoenas, to which the union attorney (who also represented

Castillo) interposed objections, did exist. That is, the union

possessed records of conversations between the union and the

alleged union agents Castillo, Reyes, Castilleja, and Garcia (and

other records the subpoena described) and that Castillo had

records of telephone calls between him and the union, and

between him and company employees.

14

The Board may have entertained the same inference. The

Board concluded that complying with the subpoenas would

infringe on the employees’ interest in keeping their

communications with the union private. This conclusion

assumes that the union and Castillo had responsive documents.

If they had no documents, we cannot see how requiring

compliance with the subpoenas could possibly have affected

anyone’s privacy interests.

The Board also indicated doubt about the relevance of the

documents sought in the subpoenas.8 After stating that the

hearing officer considered “the subpoenas’ irrelevance,” the

Board concluded that the company’s contrary position had “no

merit,” to which the Board added: “Even assuming the

information sought in the Employer’s subpoenas has some

relevance to the Employer’s case, we find that there has been no

showing that the Employer’s need for any such information is

paramount to the employees’ confidentiality interests protected

by Sec[tion] 7 of the Act.” Ozark Auto. Distribs., Inc., Case 21-

RC-21222 (Mar. 31, 2011), 2011 WL 1210976 (N.L.R.B.). We

do not share the Board’s skepticism about the relevance of this

material.

In unfair labor practice hearings, the Board follows the

Federal Rules of Evidence “so far as practicable,” 29 U.S.C.

§ 160(b); 29 C.F.R. § 102.39. In proceedings challenging

election results, “rules of evidence prevailing in courts” are “not

[ ] controlling.” 29 C.F.R. § 102.66(a). Even so, we treat the

Board’s comment about relevancy as reflecting the widely

accepted definition in the federal rules;9 the Board offered no

8

29 U.S.C. § 161(1) permits the quashing of a subpoena on the

ground of irrelevance.

9

See 2 CLIFFORD S. FISHMAN & ANNE T. MCKENNA, JONES ON

EVIDENCE, CIVIL AND CRIMINAL § 11:2 (7th ed. 2003).

15

other definition.10 Relevant evidence, Rule 401 tells us, is

“evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the

evidence.” Fed. R. Evid. 401.11 The “fact of consequence” was

the status of Castillo, Reyes, Castilleja, and Garcia as union

agents. The records of telephone calls among these employees

and the union bore on that subject. The “amount of association

between” the union and these employees was an important

factor in determining whether their conduct during the election

campaign should be attributed to the union. PPG Indus., Inc. v.

NLRB, 671 F.2d 817, 822 n.8 (4th Cir. 1982);12 see NLRB v.

Downtown Bid Servs. Corp., 682 F.3d 109, 115 (D.C. Cir.

2012).13 The General Counsel’s Guide for Hearing Officers

10

The Guide for Hearing Officers instructs that “[e]vidence is

relevant if it has a tendency to make more or less probable a fact of

importance to the issue under consideration.” NLRB GUIDE FOR

HEARING OFFICERS at 33 (citing Fed. R. Evid. 401). The Board has

stated that the “Federal Rules of Evidence provide[] significant

guidance with respect to relevance.” Cooking Good Div. of Perdue

Farms, Inc., 323 N.L.R.B. 345, 348 (1997).

11

As quoted in the text, the Board assumed that the documents

sought in the subpoenas may have had “some relevance.” But under

Rule 401 there are no degrees of relevancy. “Evidence is either

relevant or it is not.” United States v. Foster, 986 F.2d 541, 545 (D.C.

Cir. 1993).

12

Our court has expressed disagreement with a different aspect

of the Fourth Circuit’s reasoning in PPG Industries. Amalgamated

Clothing & Textile Workers Union, AFL-CIO v. NLRB, 736 F.2d

1559, 1565–66 (D.C. Cir. 1984); but see id. at 1571–72 (Bork, J.,

concurring).

13

Downtown Bid Services held that when employees solicit

authorization cards on a union’s behalf they are acting as agents of the

union “limited to their statements regarding ‘purported union policies’

16

suggests that “[s]ubpoenaed information should be produced if

it relates to any matter in question or if it can provide

background information or lead to other evidence potentially

relevant to the inquiry.” NLRB GUIDE FOR HEARING OFFICERS

at 21. The documents the company sought qualify on both

counts: the documents relate to a matter in question—whether

Castillo and other employees were agents of the union—and the

documents may have provided leads to other relevant evidence.

There is more to be said about the information the

subpoenas sought. The hearing officer found that employee

Oscar Castillo, a self-described “front runner” for the union,

gave untruthful testimony at the hearing. The company alleged

that Castillo, while acting with apparent authority as a union

agent, threatened and intimidated employees during the run up

to the election. When he testified at the hearing, Castillo denied

talking to anyone at the union, and he denied having any

conversations with his fellow employees about the union. The

hearing officer found his testimony not believable: “Overall, I

discredit Castillo’s testimony.” But the hearing officer did not

take the next logical step. That is, she did not find that with

respect to Castillo’s interaction with the union, the truth was the

opposite of what he recounted under oath. See United States v.

Zeigler, 994 F.2d 845, 848–51 (D.C. Cir. 1993). The documents

the company sought in the subpoenas were relevant to that

subject and Castillo’s lack of candor lent support to the

plausibility of the company’s “version of the events.” See

made in the course of soliciting.” 682 F.3d at 113 (quoting Davlan

Eng’g, 283 N.L.R.B. 803, 804 (1987)). In this case, the union’s

representative testified that company employees visited the union’s

office and picked up blank authorization cards. It is not clear which

employees these were. The hearing officer found no evidence that

Castillo, Reyes, Castilleja, or Garcia—the alleged union

agents—signed authorization cards or solicited employees to sign the

cards.

17

Drukker Commc’ns, 700 F.2d at 732. In comparable

circumstances, then-Judge Scalia, writing for our court in

Drukker, held that the Board’s refusal to permit an employer to

subpoena a witness in a proceeding challenging the validity of

a representation election constituted prejudicial error. Id. at

731–34. “We therefore find that the Board’s action must be set

aside because it was taken without observance of procedure

required by law, 5 U.S.C. § 706(2)(D) (1976).” Id. at 734.

As to “the rule of prejudicial error” under APA § 706, the

company has the support not only of then-Judge Scalia’s

analysis in Drukker, but also then-Judge Alito’s opinion for the

court in Indiana Hospital, Inc. v. NLRB, 10 F.3d 151 (3d Cir.

1993), another case very much like this one. Indiana Hospital

held that the Board’s revocation of the hospital’s subpoenas in

a proceeding challenging a representation election was

prejudicial error and warranted setting aside the election. The

hospital contested the election on the ground that Board

employees engaged in misconduct during the election campaign.

To prove its allegation, one of the hospital’s subpoenas sought

documents reflecting telephone conversations between Board

staff members and hospital employees. Id. at 152. The court

held that the hearing officer’s revocation of this subpoena duces

tecum was prejudicial because the hospital could have used the

documents in “at least three significant ways.” Id. at 154. The

hospital could have introduced the documents into evidence; it

could have identified the employees the Board staff members

had called; and it could have used the information in examining

those employees.14 Id. 154–55. Cf. Joseph T. Ryerson & Son,

14

The subpoenaed documents in Indiana Hospital were not part

of the administrative record. There, as here, petitioners faulted the

hearing officer for not reviewing the documents before revoking the

subpoenas. See Brief of Pet’r Indiana Hospital, Indiana Hospital v.

NLRB, Nos. 93–3070, 93–3096, available at 1993 WL 13123443, at

*6, 18–19 (3d Cir. 1993).

18

Inc. v. NLRB, 216 F.3d 1146, 1154 (D.C. Cir. 2000). Each of

these points applies to this case.

We add one further consideration: As experienced trial

attorneys know, when a hostile witness realizes that examining

counsel has information bearing on the answers to counsel’s

questions, the witness tends to be more candid. Here, the

company was deprived of this incentive for truthful and

complete testimony. In saying this we are of course assuming

that the documents, if disclosed, would have supported the

company’s claim that company employees Castillo, Reyes,

Castilleja, and Garcia were acting as union agents. But it seems

to us that Drukker and Indiana Hospital made the same sort of

assumption when determining that the errors in those cases were

prejudicial. In Drukker, the court could not be sure what sort of

testimony would have been given if the subpoena had issued.

And in Indiana Hospital the court could not be certain what the

documents would have revealed if the subpoena had not been

quashed.

Our opinion could end at this point, but we think it prudent

to say a few words about Shinseki v. Sanders, 556 U.S. 396

(2009), even though neither the Board nor the company cited the

case. Sanders rejected the Federal Circuit’s application of the

rule of prejudicial error in reviewing decisions of Court of

Appeals for Veterans Claims. “In our view,” the Court wrote,

“the Federal Circuit’s ‘harmless-error’ framework is too

complex and rigid [and] its presumptions impose unreasonable

evidentiary burdens upon the VA.” Id. at 399. “[N]ormally,”

the Court held, “the burden of showing that an error is harmful

[ ] falls on the party attacking the agency’s determination.” Id.

at 409. The factors that should “inform a reviewing court’s

‘harmless-error’ determination are various” and “case-specific.”

Id. at 411.

19

Our decision in this case is consistent with Sanders. We are

not imposing any “rigid” formula for determining harmless

error. The factors we have considered are “case-specific.” And

we have not imposed on the company “an evidentiary ‘barrier so

high that it could never be surmounted.’” Id. at 408 (quoting

Neder v. United States, 527 U.S. 1, 18 (1999)); see also

McLouth Steel Products, Co. v. Thomas, 838 F.2d 1317,

1323–25 (D.C. Cir. 1988).

The Court in Sanders and in Neder relied heavily on ROGER

J. TRAYNOR, THE RIDDLE OF HARMLESS ERROR (1970), the

classic exposition of harmless error by the former Chief Justice

of the California Supreme Court. Sanders, 556 U.S. at 408, 409,

412; Neder, 527 U.S. at 18, 19; see also O’Neal v. McAninch,

513 U.S. 432, 437, 442 (1995); Delaware v. Van Ardsdall, 475

U.S. 673, 681, 687 (1986).

We shall do the same and end with this passage from Chief

Justice Traynor’s monograph: “There are sometimes errors at a

trial that deprive a litigant of the opportunity to present his

version of the case. These are also ordinarily reversible, since

there is no way of evaluating whether or not they affected the

judgment. When, for example, an appellant has been deprived

of the opportunity to summon witnesses, the appellate court can

hardly determine what testimony would have materialized but

for the error. No subjunctives can fill the void in a very present

record.” TRAYNOR, THE RIDDLE OF HARMLESS ERROR 68.

The petition for judicial review is granted, the Board’s

cross-petition for enforcement is denied, the Board’s order is

vacated, and the case is remanded to the Board.

So ordered.

20

ADDENDUM

The subpoena served on the union requested the following

documents:

Request No. 1: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Robert

Castilleja regarding Robert Castilleja serving, acting or

functioning as an agent, official, representative or steward of the

Union.

Request No. 2: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Manuel Reyes

regarding Manuel Reyes serving, acting or functioning as an

agent, official, representative or steward of the Union.

Request No. 3: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Oscar Castillo

regarding Oscar Casillo serving, acting or functioning as an

agent, official, representative or steward of the Union.

Request No. 4: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Oscar

Castillo.

Request No. 5: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Manuel

Reyes.

Request No. 6: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Robert

Castilleja.

21

Request No. 7: Any and all DOCUMENTS that RELATE to

Oscar Castillo serving, acting or functioning as an agent,

official, representative or steward of the Union.

Request No. 8: Any and all DOCUMENTS that RELATE to

Manuel Reyes serving, acting or functioning as an agent,

official, representative or steward of the Union.

Request No. 9: Any and all DOCUMENTS that RELATE to

Robert Castilleja serving, acting or functioning as an agent,

official, representative or steward of the Union.

Request No. 10: Any and all DOCUMENTS that RELATE to

O’Reilly from May 1, 2010 through August 13, 2010.

Request No. 11: Any and all DOCUMENTS that RELATE to

any COMMUNICATION regarding O’Reilly from May 1, 2010

through August 13, 2010.

Request No. 12: Any and all DOCUMENTS that RELATE to

any COMMUNICATION from Local 166 to the employees who

work at O’Reilly’s facility located at 24520 San Michele Road,

Moreno Valley, California from May 1, 2010 through August

13, 2010.

Request No. 13: Any and all DOCUMENTS from May 1, 2010

through August 13, 2010 that RELATE to any

COMMUNICATION from Local 166 to the O’Reilly’s

employees eligible to vote in the Election.

Request No. 14: Any and all DOCUMENTS from May 1, 2010

through August 13, 2010 regarding O’Reilly’s employees

eligible to vote in the Election.

22

Request No. 15: Any and all DOCUMENTS from May 1, 2010

through August 13, 2010 that RELATE to any

COMMUNICATION between the Union and Santiago Albarran.

Request No. 16: Any and all DOCUMENTS that RELATE to

any [COMMUNICATION] between the Union and Efrain

Vasquez from May 1, 2010 through August 13, 2010.

Request No. 17: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Javier Soto

from May 1, 2010 through August 13, 2010.

Request No. 18: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Mario

Macchione from May 1, 2010 through August 13, 2010.

Request No. 19: Any and all DOCUMENTS that RELATE to

any COMMUNICATION between the Union and Louis (Greg)

Morrison from May 1, 2010 through August 13, 2010.

Request No. 20: Any and all DOCUMENTS that RELATE to

any COMMUNICATION from May 1, 2010 through August 13,

2010 by Oscar Castillo, Manuel Reyes and/or Robert Castilleja

to any employees eligible to vote in the Election.

Request No. 21: Any and all DOCUMENTS that RELATE to

any COMMUNICATION from May 1, 2010 through August 13,

2010 by Ruben Luna to any employees eligible to vote in the

Election.

Request No. 22: Any and all DOCUMENTS from May 1, 2010

through August 13, 2010 that RELATE to Ruben Luna and any

employees eligible to vote in the Election.

23

Request No. 23: Any and all DOCUMENTS from May 1, 2010

through August 13, 2010 that RELATE to Oscar Castillo,

Manuel Reyes and/or Robert Castilleja.

Request No. 24: Any and all DOCUMENTS that RELATE to

any meetings from May 1, 2010 through August 13, 2010 held

by the Union and any O’Reilly employees eligible to vote in the

Election.

Request No. 25: Any and all DOCUMENTS that RELATE to

any COMMUNICATIONS at any meetings from May 1, 2010

through August 13, 2010 held by the Union and any O’Reilly

employees eligible to vote in the Election.

The subpoena served on Oscar Castillo requested the

following documents:

Request No. 1: Any and all DOCUMENTS, including cellular

or telephone records (including the time, date and phone number

called), RELATING to any telephone calls made by YOU to the

UNION from May 1, 2010 through August 13, 2010.

Request No. 2: Any and all DOCUMENTS, including cellular

or telephone records (including the time, date and phone number

called), RELATING to any telephone calls received by you from

the UNION from May 1, 2010 through August 13, 2010.

Request No. 3: Any and all DOCUMENTS, including cellular

and telephone records (including the time, date and phone

number called), showing calls made to O’REILLY employees

or received from O’REILLY employees eligible to vote in the

ELECTION for the time period of May 1, 2010 through August

13, 2010.